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IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 11-14532-CC D.C. Docket No. 2:11-cv-2746-SLB UNITED STATES OF AMERICA, Plaintiff-Appellant, vs. THE STATE OF ALABAMA, et al., Defendants-Appellees No. 11-14535-CC D.C. Docket No. 5:11-cv-2484-SLB HISPANIC INTEREST COALITION OF ALABAMA, et al., PlaintiffsAppellants, vs. GOVERNOR ROBERT BENTLEY, et al., Defendants-Appellees On appeal from the United States District Court for the Northern District of Alabama STATE DEFENDANTS OPPOSITION TO THE APPELLANTS MOTIONS FOR INJUNCTION PENDING APPEAL Luther Strange Attorney General John C. Neiman, Jr. Solicitor General Elizabeth Prim Escalona Deputy Solicitor General Margaret L. Fleming James W. Davis Misty S. Fairbanks William G. Parker, Jr. Joshua K. Payne Assistant Attorneys General OFFICE OF THE ATTORNEY GENERAL 501 Washington Avenue Montgomery, Alabama 36130-0152 Telephone: (334) 242-7300 Facsimile: (334) 353-8440 October 11, 2011

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United States v. Alabama Case No. I I-14532-CC

lth Circuit

HICA v. Bentley I I th Circuit Case No. I I -I 45 35-CC

Certificate of Interested Persons

Pursuant to 11th Cir. Rule

26.I-I,

counsel for State Defendants certify that

they believe that the Certificates of Interested Persons and Corporate Disclosure
Statements contained in the Appellants' Motions for Injunction Pending Appeal are correct, but for the following additional parlies:

Blackburn, Sharon L., United States District Judge

Strange, Luther, Alabama Attorney General

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TABLE OF CONTENTS I. II. III. A. B. 1. 2. 3. 4. C. IV. A. INTRODUCTION. ..........................................................................................1 STANDARD OF REVIEW. ............................................................................4 THE APPELLANTS ARE NOT LIKELY TO SUCCEED ON THE MERITS. ..........................................................................................................6 The United States Advocates an Unprecedented Approach to Preemption. .................................................................................................7 The Challenged Sections Are Not Preempted. .........................................12 Section 10 is not preempted. ...............................................................12 Sections 12 and 18 are not preempted.................................................19 Sections 27 and 30 are not preempted.................................................24 Section 28 is not preempted. ...............................................................29 The HICA Plaintiffs Equal Protection Argument Also Fails. ................31 THE EQUITIES DO NOT FAVOR AN INJUNCTION PENDING APPEAL. .......................................................................................................37 The United States Will Not Suffer Irreparable Harm if the Challenged Sections Are Enforced During this Expedited Appeal. ......................................................................................................37 The HICA Plaintiffs Will Not Suffer Irreparable Harm if the Challenged Sections Are Enforced During this Expedited Appeal. ......................................................................................................40 The State and the Public Will Be Harmed if a Valid Legislative Enactment Is Left Unenforced, and On-Again, Off-Again Enforcement Will Confuse the Public. .....................................................44 CONCLUSION..............................................................................................46

B.

C.

V.

CERTIFICATE OF SERVICE ................................................................................48

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STATE DEFENDANTS1 OPPOSITION TO THE APPELLANTS MOTIONS FOR INJUNCTION PENDING APPEAL At issue in these motions is whether the Court should grant the Plaintiffs the precise relief they seek in this appeala preliminary injunction partially barring enforcement of Alabamas new immigration lawonly on less briefing and after less consideration by the Court. The Court should resist any temptation to grant this injunction on something less than a full and faithful application of the established prerequisites for such extraordinary relief. After hundreds of pages of briefing, almost nine hours of oral argument, and more than six weeks of consideration, the District Court did fully and faithfully apply these standards. To be sure, its decision was not error-free, as it wrongly enjoined enforcement of some sections of the new law. But correcting errors of this sort is what the appeal is for. For the reasons that follow, it is clear this Court should deny Plaintiffs motions and decide theses issues only after full briefing. Plaintiffs have not shown that there will be such irreparable harm while this appeal is pending to justify giving short shrift to issues of this importance and complexity.

State Defendants in Appeal No. 11-14532 are the State of Alabama and Governor Robert Bentley. State Defendants in Appeal No. 11-14535 are Governor Robert Bentley, Attorney General Luther Strange, Interim Superintendent Larry E. Craven, Chancellor Freida Hill, and District Attorney Robert L. Broussard. State Defendants, in both cases, join in this opposition. 1

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I.

INTRODUCTION. The Immigration and Nationality Act (INA), 8 U.S.C. 1101-537,

provides specific criteria by which aliens may enter and remain in this country. Millions, however, flout immigration law by residing here illegally. Sheer incapability or lax enforcement of the laws has resulted in the creation of a substantial shadow population within our borders. Plyler v. Doe, 457 U.S. 202, 218 (1982). As President Obama acknowledged, [w]eve got an immigration system thats broken right now, where too many folks are breaking the law.2 Although the resulting crisis has hit States like Arizona and Texas the hardest, it has also extended to States like Alabama. By one estimate, between 75,000 and 160,000 illegal aliens currently live in this State. (HICA Doc. 110-1, attached as Exh. A, at 25 of 33.)3 Many of these people are taking jobs away from United States citizens and authorized aliens who desperately want to work in these hard economic times: while the unemployment rate in Alabama stands at 10%,4 approximately 4% of Alabamas workforce consists of illegal aliens.5 And the difficulties in collecting taxes from these persons, many of whom work off the books, means that many of them are utilizing Alabamas public resources without
2 3

http://www.whitehouse.gov/the-press-office/2011/07/06/remarks-president-twitter-town-hall. Documents filed in D.C. Docket No. 2:11-cv-2746-SLB will be referred to as U.S. Doc. __. Documents filed in D.C. Docket No. 5:11-cv-2484-SLB will be referred to as HICA Doc. __. From August 3, 2011 until September 1, 2011, these cases were consolidated, along with No. 5:11-cv-02736-SLB, and documents in the three cases were filed under 5:11-cv-2484-SLB. 4 http://www2.dir.state.al.us/LAUS/CLF/ALUS.aspx 5 HICA Doc. 110-1 (Exh. A) at 26 of 33. 2

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paying their fair share. Illegal aliens also form a substantial part of the States prison population, and thus exact on the State not only the social costs of their crimes, but also the fiscal costs of their incarceration. (HICA Doc. 110-2, attached as Exh. B.) Act No. 2011-535 marks Alabamas effort to address these problems. But it does not seek to replace the immigration laws passed by the federal government. It instead simply requires its officials to take certain steps, fully within the States traditional police powers, and fully consistent with federal law, to help ensure that federal immigration law is respected. The Plaintiffs contend, however, that Alabama has no room to act in the area of immigration, even to gather information or to cooperate with federal officials. They claim that the inaction of the Executive Branch not the directives of Congress preempts state action. The mantra of the Department of Justice is, If we ignore the law, States, so must you and you also must bear the costs thereof. In Plaintiffs view, the Act causes irreparable harm when an illegal alien fears that his violation of federal law will come to light. In their view, it is disorder for a State to dare attempt to bring order by identifying persons violating federal immigration law, reporting these persons to federal officials, and leaving to federal officials whether to deport these persons.

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The Plaintiffs are wrong. Congress left room for States to act, and Alabamas Act fits comfortably in the space allowed. The District Court correctly ruled that Plaintiffs are not entitled to a preliminary injunction concerning the sections of the Act at issue here, and Plaintiffs present motions should be denied for the same reasons: Plaintiffs are not likely to prevail on the merits and the equities do not weigh in favor of an injunction. Plaintiffs motions should be denied. II. STANDARD OF REVIEW. For this Court to grant the extraordinary remedy of an injunction pending appeal, the petitioners must show: (1) a substantial likelihood that they will prevail on the merits of the appeal; (2) a substantial risk of irreparable injury to the [petitioners] unless the injunction is granted; (3) no substantial harm to other interested persons; and (4) no harm to the public interest. Touchston v. McDermott, 234 F.3d 1130, 1132 (11th Cir. 2000). [P]reliminary injunctions of legislative enactments because they interfere with the democratic process and lack the safeguards against abuse or error that come with a full trial on the merits must be granted reluctantly and only upon a clear showing that the injunction before trial is definitely demanded by the Constitution and by the other strict legal and equitable principles that restrain courts. Ne. Fla. Chapter of the Assn of Gen. Contractors of Am. v. City of Jacksonville, 896 F.2d 1283, 1285 (11th Cir. 1990).
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The HICA Plaintiffs suggest that they are entitled to an injunction if they show only a substantial case on the merits, and that they need not show a probability of success, citing Ruiz v. Estelle, 650 F.2d 555,565 (5th Cir. 1981) (Ruiz I). (We note that the United States does not cite Ruiz here, although it did so in the District Court, see U.S. doc. 96). Ruiz, however, involved a request for a stay, not an injunction, and that makes a difference. For an injunction, a substantial case will not suffice: For this Court to grant the extraordinary remedy of an injunction pending appeal, the petitioners must show a substantial likelihood that they will prevail on the merits of the appeal. Touchston, 234 F.3d at 1132. A stay and an injunction are not the same. Nken v. Holder, 129 S.Ct. 1749, 1761 (2009). A stay is directed toward the courts own judgment, the court staying its own hand (not the parties). Id. at 1757. In contrast, [w]hen a court employs the extraordinary remedy of injunction, it directs the conduct of a party, and does so with the backing of its full coercive powers. Id. (citations omitted). By its terms, then, the lesser standard of Ruiz I applies only to stays. This makes sense, because to apply Ruiz I to injunctions would eviscerate the standard. Although an applicant for a preliminary injunction must show a substantial likelihood of success on the merits, under Plaintiffs view, if the applicant fails to

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make that showing the first time, he may obtain the exact same relief, on a lesser showing, by appealing and seeking an injunction pending appeal. Even if Ruiz I applies, it is not as lenient a standard as Plaintiffs suggest. It is not a free pass on the first prong. In Ruiz II, the Court explained: In the short time that has elapsed since Ruiz I, many applicants for stay seem to have assumed that Ruiz I was a coup de grace for the likelihood-of-success criterion in this circuit. This assumption, however, is unwarranted, for it ignores the careful language of Ruiz I. Likelihood of success remains a prerequisite in the usual case even if it not an invariable requirement. Only if the balance of equities (i.e., consideration of the other three [stay] factors) is heavily tilted in the movants favor will we issue a stay in its absence, and, even then, the issue must be one with patent substantial merit. Ruiz v. Estelle, 666 F.2d 854, 856-57 (5th Cir. 1982) (Ruiz II). Thus, even if Ruiz I and II apply to injunctions, and even if Plaintiffs show that the other three stay factors are heavily tilted in their favor (which they cannot), Plaintiffs still must show that their case has patent substantial merit. Id. Plaintiffs have not met that burden either, and their motion is due to be denied.6 III. THE APPELLANTS ARE NOT LIKELY TO SUCCEED ON THE MERITS. Before this opposition explains why Plaintiffs have not satisfied their heavy burden of establishing a substantial likelihood of showing that particular provisions

The District Court did not have to resolve whether Ruiz applies in this instance because it found that Plaintiffs have not met either standard: [P]laintiffs have not shown that they are likely to prevail nor that they have a substantial case on the merits. HICA Doc. 147 at 2. 6

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of the Act are not preempted (or otherwise prohibited), a few remarks about Plaintiffs general approach to preemption are warranted. A. The United States Advocates an Unprecedented Approach to Preemption.

The District Court properly began its preemption analysis by recognizing two principal cornerstones: First, the purpose of Congress is the ultimate touchstone in every preemption case. Second, [i]n all preemption cases, and particularly in those in which Congress has legislated in a field which the States have traditionally occupied, [courts] start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress. (U.S. Doc. 93 at 14-15, quoting Wyeth v. Levine, 129 S. Ct. 1187, 1194-95 (2009)). The United States seeks to expand the doctrine of implied preemption far beyond the bounds that governing precedents allow. Under the United States novel understanding of De Canas v. Bica, 424 U.S. 351 (1976), the impliedpreemption doctrine effectively precludes the States from enacting any law intended to help the federal government curb illegal immigration. The United States consistently advances a theory of preemption-by-executive-inaction that, if it became the law, would jeopardize the federal-state balance in virtually every area in which the federal government might operate. De Canas does not foreclose all state laws addressing any possible aspect of immigration. The De Canas Court laid out a three-part test for determining
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whether a state law affecting immigration is displaced through implied preemption. (See HICA Doc. 82 at 39.) Under that test, a state law is preempted only: (1) if it falls into the narrow category of laws deemed to be a regulation of immigration, 424 U.S. at 355; if Congress expressed the clear and manifest purpose of completely occupying the field and displacing all state activity, id. at 357; or if the state regulation conflicts with federal laws, such that it stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress, id. at 363.

(2)

(3)

Under this test and this is the test for implied preemption Act No. 2011-535 must be allowed to go into effect. The United States essentially adds a fourth category of impliedly preempted laws to this list. The federal government asserts that under De Canas, a state exceeds its power to enact regulations touching on aliens generally if the regulation is not passed pursuant to state police powers that are focuse[d] directly upon and tailored to combat what are essentially local problems. (U.S. Doc. 2 at 26 of 85, quoting De Canas, 424 U.S. at 356-57.) As the District Court recognized, De Canas says no such thing. The De Canas Court noted that the state law in question addressed local problems protection of the States fiscal interests and lawful residential labor force, much the same as Alabamas motivations but never said that any law addressing nonlocal problems is preempted. (See U.S. Doc. 93 at 25, noting that De Canas
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rejected the notion that Congress has occupied the field through the INA, and citing United States v. Arizona, 703 F. Supp. 2d 980, 999 (D. Ariz. 2010) ([In De Canas] the Supreme Court rejected the possibility that the INA is so comprehensive that it leaves no room for state action that impacts aliens.) Moreover, arguing that the Act is impliedly preempted, the United States repeatedly points not to what Congress has said, but rather to informal actionsor, perhaps more to the point, failures to actof the Executive Branch. This approach marks a substantial and unwarranted attempt to aggrandize the Executive Branchs powers at the expense of both Congress and the States. First, a particular Administrations decision not to enforce a federal law cannot preempt the States from taking measures that are consistent with that law as Congress has written it. If the Administrations theory were accepted by the courts, then the President could displace all sorts of state regulation merely by declaring his or her intent not to enforce certain federal laws that operate in the same spheres as particular state laws. That is not how preemption works. The Supremacy Clause gives preemptive force to only the Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made . . . under the Authority of the United States. U.S. CONST. art. VI, cl. 2. It does not give that preemptive force to the exercise of unilateral prosecutorial discretion by the Executive Branch.
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Along the same lines, the United States is wrong when it suggests that state laws that push too hard against the current Administrations sense of an implicit, unstated balance in federal immigration law are impliedly preempted. (See U.S. Doc. 2 at 12-14, 64-65, 68, 77, 81 of 85.) The Supreme Court rejected that sort of approach, in the immigration context in particular, earlier this year in Chamber of Commerce of the U.S. v. Whiting, 131 S. Ct. 1968, 1983 (2011).7 There the Chamber of Commerce had argued that an Arizona law that stripped licenses from businesses that employed illegal aliens and required businesses to use the E-Verify system was impliedly preempted because the Immigration Reform and Control Act reflect[ed] Congresss careful balancing of several policy considerations, and the Arizona laws alleged harshness . . . exert[ed] an extraneous pull on the scheme established by Congress that impermissibly upsets that balance. Id. (internal quotation marks omitted).

Whiting was a plurality decision but its holding is binding precedent. Chief Justice Roberts authored the opinion of the Court. The fifth vote to affirm was Justice Thomass, who joined Parts I, II-A, and III-A of the opinion and concurred in the judgment. See 131 S. Ct. at 1973 n*. The rationale Chief Justice Roberts offered for upholding the Arizona law in Parts II-B and IIIBnamely, his finding that the law was not impliedly preemptedwas narrower than Justice Thomass apparent rationale that purposes and objectives preemption doctrine should be overruled altogether. Justice Thomas did not write separately to explain why he did not join Parts II-B and III-B, but previously he has explained that he would overrule purposes and objectives preemption doctrine and will not join opinions that apply it. See Wyeth v. Levine, 129 S. Ct. 1187, 1217 (2009) (Thomas, J., concurring in the judgment). When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds. Peek-A-Boo Lounge of Bradenton, Inc. v. Manatee Cnty., 337 F.3d 1251, 1260 n.10 (11th Cir. 2003) (citation and internal quotation marks omitted). 10

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The Whiting Court rejected this theory, explaining that every federal statute strike[s] a balance among a variety of interests. Id. at 1984-85. But it is the statute itselfand not some sort of unstated balancethat has the preemptive effect. Implied preemption analysis does not justify a freewheeling judicial inquiry into whether a state statute is in tension with federal objectives; such an endeavor would undercut the principle that it is Congress rather than the courts that preempts state law. Id. at 1985 (citations omitted). To be sure, in the recent challenge to Arizonas immigration statute, a twojudge majority in the Ninth Circuit bought the United States contrary argument on this point. See United States v. Arizona, 641 F.3d 339, 351-52 (9th Cir. 2011). But this Court does not have to follow the Ninth Circuit, and the District Court properly followed the dissents view that [t]he internal policies of [the Bureau of Immigration and Customs Enforcement] do not and cannot change the fact that Congressional action preempts, not Executive priorities and strategies. Id. at 379-80 (Bea, J., dissenting in part). Second, the United States takes its theory of Executive Branch preemption to even more troubling heights by asserting that numerous provisions in the Act are impliedly preempted because they conflict with the current Administrations views of what makes for good foreign policy. The Ninth Circuit majority bought that argument as well, but once again Judge Bea had it right in dissent. As he
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explained, when it comes to federal preemption of state laws that address illegal immigration, [w]e do not grant other nations foreign ministries a hecklers veto. Id. at 383. The District Court was correct to follow the dissent in the Arizona case, and this Court should as well. The District Court was therefore correct to hold that the Supreme Court appears to have rejected the notion that Congress has occupied the field through the INA. (U.S. Doc. 93 at 25.) It is not inconsistent with the purpose of Congress to do that which Congress has already done. Id., citations omitted. Under this reasonable view, the challenged sections of the Act are not preempted. B. The Challenged Sections Are Not Preempted. 1. Section 10 is not preempted.

Section 10 of Act No. 2011-535 makes it a Class C misdemeanor under Alabama law, subject to a fine of not more than one hundred dollars ($100) and not more than 30 days in jail, for an unlawfully present alien to be in violation of 8 U.S.C. 1304(e) or 8 U.S.C. 1306(a), the federal provisions that require aliens to complete and carry federal registration documents. As provided by the Act generally, Section 10 requires State and local law enforcement officials not to attempt to independently determine the aliens immigration status, but to verify the aliens status with the federal government pursuant to 8 U.S.C. 1373(c), the federal provision obligating the Bureau of Immigration and Customs Enforcement

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(ICE) to respond to immigration status verification inquiries from federal, State, or local government agencies. The United States opposes Section 10 as an impermissible State regulation of immigration. In doing so, the United States seeks to make new law in this Court. The United States disagrees with the District Courts conclusion that Alabama ha[s] avoided the defects of the state registration requirement that was held invalid by the Supreme Court in Hines [v. Davidowitz, 312 U.S. 52, 62 (1941)] because Alabama is imposing new penalties for violations of federal law rather than creating an independent registration requirement. U.S. Mot. 14 (citing U.S. Doc. 93 at 23). The United States grounds its disagreement in the assertion that the federal registration provisions in the INA are [only] one component of Congresss exercise of its exclusive power over immigration, but does not explain what the other component[s] are. Id. Instead, the United States refers to a comprehensive and exclusive federal scheme, and says Alabama has no authority to intrude upon and alter this scheme. Id. For support, the United States cites to the Ninth Circuits decision in the Arizona case, asserting that because [n]othing in the text of the INAs registration provision indicates that Congress intended for states to participate in the enforcement or punishment of federal immigration rules, Alabama cannot do what it has done in Section 10. Id. (quoting Arizona, 641 F.3d at 355). The United States
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thus asks this Court to break new ground in the area of immigration law, as the Ninth Circuit has done. This would indeed be new ground because, as the District Court stated: Unless Congress has occupied the field through the INA a conclusion the Supreme Court appears to have rejected, see De Canas, 424 U.S. at 358; United States v. Arizona, 703 F. Supp. 2d 980, 999 (D. Ariz. 2010) ([In De Canas] the Supreme Court rejected the possibility that the INA is so comprehensive that it leaves no room for state action that impacts aliens.) it is not inconsistent[] with the purposes of Congress to do that which Congress has already done. See Hines, 312 U.S. at 66. The Court has uniformly held that the States are separate sovereigns with respect to the Federal Government because each States power to prosecute is derived from its own inherent sovereignty, not from the Federal Government. Heath v. Alabama, 474 U.S. 82, 89 (1985). (U.S. Doc. 93 at 25.) The fact that [S]tates can enact laws which impose state penalties for conduct that federal law also sanctions, without being preempted, is too plain to need more than statement. Westfall v. United States, 274 U.S. 256, 258 (1927). (Id.) Alabama is a separate sovereign and, in that capacity, is free to make violations of federal law violations of state law too, consistent with the purposes of Congress. The United States ignores De Canas and Whiting, the cases that actually dealt with preemption in the immigration law context, and instead cites Wisconsin Department of Industry, Labor and Human Relations v. Gould, Inc., 475 U.S. 282, 286 (1986), Buckman Co. v. Plaintiffs Legal Comm., 531 U.S. 341 (2001), and

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Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000). None of these cases supports the United States position. The United States says Gould and Buckman stand for the proposition that States do not have the authority to impose penalties for violations of federal law in addition to those deemed appropriate by Congress. U.S. Mot. 14-15. In other words, the United States argues, contrary to the District Courts determination, Alabama cannot make a violation of federal law a violation of state law, too. But Gould and Buckman cannot be cited for this purpose. In Gould, the State of Wisconsin prohibited its state procurement agents from doing business with certain repeat violators of the National Labor Relations Act. Gould, 475 U.S. at 284. Gould thus dealt with specific legislation, the NLRA, which legislation Congress intended to largely displace[] state regulation of industrial relations. Id. at 286. The Gould Court reiterated the settled rule regarding the NLRA that States may not regulate activity that the NLRA protects, prohibits, or arguably protects or prohibits. Id. Only then did the Gould Court use the language quoted by the United States [b]ecause conflict is imminent whenever two separate remedies are brought to bear on the same activity, the [settled] rule [regarding the NLRA] prevents States not only from setting forth standards of conduct inconsistent with the substantive requirements of the NLRA, but also from providing their own

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regulatory or judicial remedies for conduct prohibited or arguably prohibited by the [NLRA]. Id. (internal citations omitted). There is no such settled rule regarding the INA. De Canas and Whiting explain that far from state legislation being largely displaced, States are expressly welcome to legislate in certain areas touching upon immigration law, and to cooperate in others where Congress has not intended otherwise. See De Canas, 424 U.S. at 355, 357, 363; Whiting, 131 S. Ct. at 1984-85. In the context of personal-injury plaintiffs suing a medical device lobbyist for injuries caused from an FDA-approved device that the lobbyist helped gain FDA approval, Buckman held that the plaintiffs state-law fraud-on-the-FDA claims conflict with, and are therefore impliedly pre-empted by, federal law. Buckman, 531 U.S. at 348. The Court explained that the pertinent federal laws empower the FDA, as the victim of the fraud, to punish and deter fraud against [itself]. Id. The Court stated that the FDA uses this power to achieve a somewhat delicate balance of statutory objectives and that this balance [could] be skewed by allowing fraud-on-the-FDA claims under state tort law. Id. The difference here, in the context of tens of thousands of illegal aliens in Alabama, is that Alabama is not simply seeking to vindicate wrongs against the federal government with Act No. 2011-535. Alabama is seeking to vindicate wrongs against itself, as a separate sovereign, in the form of costs associated with
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tens of thousands of people who are not lawfully present within the State. It is an essential attribute of the States retained sovereignty that they remain independent and autonomous within their proper sphere of authority. Printz v. United States, 521 U.S. 898, 928 (1997). Moreover, it is not inconsistent[] with the purpose of Congress to do that which Congress has already done. (U.S. Doc. 93 at 25, quoting Hines, 312 U.S. at 66). Accordingly, the Supreme Court rejected the Chambers citation to Buckmans balance language in Whiting, and the Court should do the same here. Whiting, 131 S. Ct. at 1983. The United States citation to Crosby, as a case that more recently followed Gould, is not helpful. On the basis of preemption, Crosby struck down a Massachusetts statute that restricted the ability of Massachusetts and its agencies to do business with companies that did business with Burma. Crosby, 530 U.S. at 366. Alabamas Act No. 2011-535 does not interfere with Congressionally-stated foreign policy goals, and it is not within the prerogatives of the Executive Branch to alter immigration law based on its sense of foreign policy goals that is different from the balance struck by Congress. See also Arizona, 641 F.3d at 383 (When it comes to federal preemption of state laws that address the problem of illegal immigration, [w]e do not grant other nations foreign ministries a hecklers veto.) (Bea, J., dissenting in part).

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With regard to the assertion that Act No. 2011-535 criminalizes mere unlawful presence, the truth is Section 10 does so no more than federal law does. Section 10 does not criminalize unlawful presence, but instead applies only to illegal aliens who have committed the federal crimes defined in 8 U.S.C. 1304(e) and 8 U.S.C. 1306(a). Large numbers of illegal aliens are not covered by these federal statutesand, thus, by extension, Section 10. For example, aliens under the age of 18 are not required to carry registration documents. See 8 U.S.C. 1304(e). And aliens who have been in the United States for fewer than 30 days are not required to register at all. See id. 1302(a). It is impossible for an alien to violate Section 10 without also committing a federal crime. There is thus no conflict between Section 10 and federal law. Regarding the Plaintiffs allegations that the Act somehow invites discrimination, presumably because State and local law officials will target individuals based on their race, color, or national origin, Section 10 expressly forbids such behavior - as does the Act generally. See U.S. Mot. 2; Act No. 2011535 10(c) (A law enforcement official may not consider race, color, or national origin in the enforcement of this section ) Regarding the Plaintiffs arguments that the Act impermissibly encompasses individuals who are known to the federal government but who have not yet been issued documentation such that they occupy a gray area of immigration status,
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Section 10 accounts for such situations, maintaining a tenet that runs through the entire Act cooperation with and deference to federal immigration officials, to whose judgment about a persons immigration status the Act always defers. See HICA Mot. 8 (noting that some immigrants have a path to legalization which will require time for the federal government to process); Act No. 2011-535 10(d) (This section does not apply to a person who maintains authorization from the federal government to be present in the United States.). Accord Act No. 2011-535 10(b) (an aliens immigration status shall be determined by verification of the aliens immigration status with the federal government). There is no likelihood that Section 10 is preempted. 2. Sections 12 and 18 are not preempted.

The picture of how neatly the Executive Branch has turned immigration law and Congressional intent on its head is starkest in its attack on Sections 12 and 18 of Act No. 2011-535. Section 12 requires that, upon any lawful stop, detention or arrest, where reasonable suspicion exists that the person stopped, detained or arrested, is an unlawfully present alien, a reasonable attempt shall be made, when practicable, to determine the citizenship and immigration status of the person, except if the determination may hinder or obstruct an investigation. Act No. 2011535 12(a). As with Section 10, and the Act generally, the determination shall be made by contacting the federal government pursuant to 8 U.S.C. 1373(c). Id. If
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an alien is determined by the federal government to be unlawfully present, the local official shall cooperate in the transfer of the alien to the custody of the federal government, if the federal government so requests. Id. 12(e). Section 18 amends the State statute requiring motorists to carry their drivers licenses to further require officers who arrest a person for a violation of the statute and who are unable to determine by any other means that the person has a valid drivers license, to transport the person to the nearest or most accessible magistrate so that the persons immigration status can be verified with the federal government pursuant to 8 U.S.C. 1373(c). Act No. 2011-535 18. If the person is determined to be an alien unlawfully present in the United States, the person shall be considered a flight risk and shall be detained until prosecution or until handed over to federal immigration authorities. Id. As with the protocols of Section 10, the provisions of Sections 12 and 18 maintain the careful tenet running through the entire Act cooperation with and deference to federal immigration officials. The United States sees a very different statute, however, and asserts that these provisions cannot plausibly be styled as cooperation, because they radically curb[] the discretion of state officials to tailor their efforts to respond to federal priorities. U.S. Mot. 16. How so? Because, the United States asserts, these Sections impose an inflexible mandate on local law enforcement officers to check the immigration status of broad categories of
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people, presumably burdening the federal immigration status inquiry system set up pursuant to 8 U.S.C. 1373(c). Id. Thus the United States suggests that if Alabama authorities have reason to believe a person in their custody is in violation of federal immigration law, the federal government doesnt want to hear about it in spite of a federal provision requiring the federal government to listen. Indeed, federal law requires that: [ICE] shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information. 8 U.S.C. 1373(c). Judge Beas dissent in the Arizona case aptly points out the absurdity of the United States position in this regard: The majority also finds that [in requiring] state officers [to] report[] illegal aliens to federal officers, Arizona would interfere with ICEs priorities and strategies. Maj. Op. at 351. It is only by speaking in such importantsounding abstractionspriorities and strategiesthat such an argument can be made palatable to the unquestioning. How can simply informing federal authorities of the presence of an illegal alien, which represents the full extent of Section 2(B)s limited scope of state-federal interaction, possibly interfere with federal priorities and strategiesunless such priorities and strategies are to avoid learning of the presence of illegal aliens? What would we say to a fire station which told its community not to report fires because such information would interfere with the fire stations priorities and strategies for detecting and extinguishing fires? Arizona, 641 F.3d at 379-80 (Bea, J., dissenting in part). The United States goes further and asserts that Sections 12 and 18 serve[] as an obstacle in every instance to local officers ability to cooperate with
21

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federal officers administering federal policies and discretion as the circumstances of the particular case require. U.S. Mot. 16. How so? The United States doesnt explain. Of course Sections 12 and 18 do no such thing. Section 12(e) defers to federal officers policies and discretion by stating that local officials shall cooperate in the transfer of the unlawfully present alien to the custody of the federal government, if the federal government so requests. Similarly, Section 18 states that the unlawfully present alien is detained until prosecution of some State crime or until handed over to federal immigration authorities, that is, of course, if the federal authorities agree to receive the alien. The United States caps off its criticism of Sections 12 and 18 by repeating its charge of Act No. 2011-535 inviting discrimination in that reasonable suspicion of unlawful presence will often exist even for persons who have authorization to remain in the country and Sections 12 and 18 will subject these persons to improper inquisitorial practices and police surveillance. U.S. Mot. 16 (citing Hines, 312 U.S. at 74) (internal quotation marks omitted). This unfounded speculation should be rejected out of hand. As explained in regard to Section 10, supra, the Act expressly provides that law enforcement officers shall not attempt to independently make a final determination of whether an alien is lawfully present and may not consider race, color, or national origin in implementing the requirements of this section. Act No. 2011-535 12(c). The United States
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disregards the latter and seeks to use the former as a sword to attack Alabamas deference to federal immigration authorities and call it a failure to cooperate. See U.S. Mot. 16. The Court should decline the United States invitation to read the Act this way. The HICA Plaintiffs suggest that Sections 12 and 18 are preempted because [s]tate and local law enforcement officers have no power to make arrests for suspected civil immigration violations such as unlawful presence. HICA Mot. 14. But as courts have repeatedly recognized, States have the inherent authority to make arrests of individuals that they encounter who are illegal aliens, in order to transfer those illegal aliens to federal custody. See, e.g., United States v. VasquezAlvarez, 176 F.3d 1294 (10th Cir. 1999); HICA Doc. 82 at 57-59 (collecting cases).8 Indeed, Judge Bea recognized in the Arizona case that the authority of states to authorize warrantless arrests for violations of federal law is well established. Arizona, 641 F.3d at 386 (Bea, J., dissenting in part). The States arrest authority is derived from the basic power of one sovereign to assist another sovereign. This is the same inherent authority that is exercised whenever a State law enforcement officer witnesses a federal crime being committed and makes an arrest. That Plaintiffs draw on the civil nature of some federal immigration provisions changes nothing. The Supreme Court has
8

The United States does not dispute this principle. See HICA Doc. 110-3, attached as Exh. C (the authority to arrest for a violation of federal law inheres in the States). 23

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explained, in the immigration context in particular, that State officers do not need reasonable suspicion to ask a person about her immigration status, recognizing the inherent authority State officers possess to enforce the civil provisions of immigration law. Muehler v. Mena, 544 U.S. 93, 101 (2001). Moreover, any authorization needed from the federal government to detain an individual any longer than he would otherwise be detained for purposes of transferring him to federal custody would, naturally, come from the federal government. There is no likelihood that Sections 12 and 18 are preempted. 3. Sections 27 and 30 are not preempted.

Nor have Plaintiffs satisfied their burden of establishing a substantial likelihood of success on Sections 27 and 30. Plaintiffs have no statutory text to rely on here; instead they invoke unsupported assertions that these provisions are contrary to current, Executive Branch immigration policy. That is no basis for implied-preemption, and the Plaintiffs thus have no likelihood of succeeding on this argument. Section 27 provides that Alabama State courts are not to enforce the terms of, or otherwise regard as valid, any contract between a party and an alien unlawfully present in the United States, if the party had direct or constructive knowledge that the alien was unlawfully present in the United States at the time the

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contract was entered into, except in certain circumstances.9 Section 30 provides that [a]n alien not lawfully present in the United States shall not enter into or attempt to enter into a business transaction with the state or a political subdivision of the state. The District Court determined that the provision applies to licenses, but not registration requirements. (U.S. Doc. 93 at 112-14; id. at 113, n.25.) The preemption arguments against these Sections are substantially similar, and they will be treated together. The United States argues that Sections 27 and 30 are preempted because they lack even the appearance of efforts to cooperate in the enforcement of federal immigration laws and equate to a regime of self-deportation. U.S. Mot. 17-18. Similarly, the HICA Plaintiffs argue that these sections are preempted because they amount to impermissible state regulation of immigration HICA Mot. 24, and affect the conditions under which a legal entrant may remain, id. at 21. The District Court correctly rejected these arguments. As to Section 27, the District Court noted that while Congress never expressed an intent that such contracts be unenforceable, it also never expressed an intent that they must be enforceable. (U.S. Doc. 93 at 102.) The District Court was correct, because a preemption by omission analysis does not work. See Whiting, 131 S.Ct. at 1985; De Canas, 424 U.S. at 360-61 (both rejecting a preemption by omission
9

By its terms, Section 27 does not apply to contracts authorized by federal law, to contracts for food or medical services, or to contracts for a nights lodging. 25

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argument). Thus, Federal immigration law does not prohibit Alabama from passing a law regarding the enforceability of contracts involving aliens unlawfully present in the United States. (U.S. Doc. 93 at 102.)10 Concerning Section 30, the District Court found that it is intended to prohibit the state from issuing a license to an unlawfully-present alien, U.S. Doc. 93 at 113, and [t]he United States has not demonstrated that Congress has expressly or implicitly preempted the power of the states to refuse to license an unlawfully-present alien, id. at 114. The United States identifies no statutory provision in conflict with Section 30, but instead suggests that Section 30 is in tension with extant immigration policies. That assertion cannot do the heavy lifting here. It is the express intent of Congress that determines preemption, and invoking Executive policy cannot satisfy the Plaintiffs steep burden. Nor can the United States back into a finding of implied preemption by asserting that Section 30 imposes distinct, unusual, and extraordinary burdens and obligations upon aliens. Preemption does not turn on the burdensomeness or inconvenience that a state law places on an alien unlawfully present in the United States. That is especially so since federal immigration law itself places numerous

10

The District Court also correctly found that Section 27 is not barred or preempted by 42 U.S.C. 1981 because that statute may reach discrimination based on alienage, but does not protect a person from discrimination on the basis of unlawful presence. (HICA Doc. 137 at 93). 26

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burdens on illegal aliens. There is no Congressional policy that aliens unlawfully present must always be treated exactly the same as persons who have not violated the Nations immigration laws. There cannot be, for Congress has already drawn distinctions, such as prohibiting illegal aliens from obtaining drivers licenses. See Pub. L. 104-208, 502, 110 Stat. 3009-671 (1996); cf. Plyler, 457 U.S. at 223 (Undocumented aliens cannot be treated as a suspect class because their presence in this country in violation of federal law is not a constitutional irrelevancy.). In addition, the United States cannot possibly prevail on the merits of their challenges to Sections 27 and 30 because they raise a facial challenge to each. Their burden is therefore to establish that no set of circumstances exists under which the Act would be valid. United States v. Salerno, 481 U.S. 739, 745 (1987). There are, however, unquestionably valid applications of each. For example, Section 30 prohibits an alien unlawfully present from applying for a drivers license. This application does not conflict with federal law, which in fact encourages (and for all practical purposes, requires) a State to deny a drivers license to illegal aliens. By federal statute, an alien unlawfully present is not eligible for any State or local public benefit. 8 U.S.C. 1621(a). The privilege of driving is a public benefit, but there is even more specific evidence of Congressional intent regarding drivers licenses. First, in 1996 Congress expressly

27

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provided for the States denying drivers licenses to aliens who are not lawfully present in the United States: Pursuant to guidelines prescribed by the Attorney General not later than 6 months after [Sept. 30, 1996], all States may conduct pilot programs within their State to determine the viability, advisability, and cost-effectiveness of the States denying driver's licenses to aliens who are not lawfully present in the United States. Under a pilot program a State may deny a driver's license to aliens who are not lawfully present in the United States. Omnibus Consolidated Appropriations Act of 1997, Pub. L. 104-208, 502, 110 Stat. 3009-671 (1996) (emphasis supplied). Then, in 2005, Congress enacted the Real ID Act and effectively made it impermissible for States to issue drivers licenses to illegal aliens. See Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief of 2005, Pub. L. 109-13, 202, 119 Stat. 231, 302 (2005).11 Consequently, if Alabama gave drivers licenses to all comers, regardless of status, then under the Real ID Act, an Alabama drivers license could not be used for any official purpose by any federal agency, such as getting through TSAs airport security. No federal law requires States to engage in business transactions with illegal aliens, and the United States facial challenge thus fails.

11

The Real ID Act provides that no federal agency may accept a States Drivers License for any official purpose unless the State meets the standards of the Act. Pub. L. 109-13, 202(a)(1). One of those standards that the State must meet is to confirm the citizenship or lawful immigration status of all applicants. Pub. L. 109-13, 202(c)(2)(B). 28

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Likewise, the United States cannot show that every possible application of Section 27 is invalid. Many contracts affected by Section 27 are already prohibited by federal law. See, e.g., 8 U.S.C. 1324a(a)(1) & (4), 1323(a)(2), 1324(a)(1)(A)(ii) & (iii). As a general proposition, a court will not aid either party to an illegal contract, in enforcing or rescinding that contract. Youngblood v. Bailey, 459 So. 2d 855, 859 (Ala. 1984). Section 27 simply codifies this principle with respect to contracts that require an illegal alien to remain unlawfully present in the country. For all these reasons, Plaintiffs are not likely to prevail on their claim that Sections 27 and 30 are preempted. 4. Section 28 is not preempted.

The Plaintiffs are also unlikely to succeed on the merits of their claim that Section 28 is preempted. This Section requires public elementary and secondary schools to request a students birth certificate from his or her parent or guardian at the time of enrollment. If the birth certificate shows that the student was born outside the United States, or if a birth certificate is unavailable, the students parent or guardian is asked to notify the school within 30 days of the citizenship or immigration status of the student. Enrollment is a one-time event (HICA Doc. 137 at 98), and Section 28 does not require schools to investigate the immigration status of parents (U.S. Doc. 93 at 106). Moreover, Section 28 provides no
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enforcement mechanism in the event that a parent or guardian declines to provide the requested information. Finally, and most importantly, this data collection system does not prevent any child from enrolling in school. The United States argues that Section 28 deters even children who are lawfully present from attending school by making their enrollment a tool for discovering the status of their parents and family members. U.S. Mot. 17. It argued in the District Court that Section 28 is preempted as an impermissibl[e] registration scheme for children (and derivatively their parents) akin to the one the Supreme Court invalidated in Hines. (U.S. Doc. 93 at 107.) Section 28 does not effectively acquire information about a parent or guardians immigration status. While Section 28 states that the public schools shall determine whether the student . . . is the child of an alien not lawfully present, Section 28(a)(1), the schools are to do so by rely[ing] upon the presentation of the students original birth certificate or a certified copy thereof, Section 28(a)(2), and the birth certificates are not likely to have that information. (U.S. Doc. 93 at 106 ([S]uch information is not included on the birth certificate.)). Section 28 does not authorize any investigation, and it does not impose any sanctions in the event that any requested information is not provided. Section 28 calls for data collection at the time of enrollment, but does not prevent any child from enrolling. The data collection leads to a student being
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coded with a 1 or a 0 in a database, (HICA Doc. 82-3 (Exh. D) at 4), and that data is then used to generate a report for the Legislature. Regardless of how a student is coded, the student is enrolled. See Exhibit D. Section 28 is thus nothing like the impermissible registration system in Hines. There, Pennsylvania passed a statute requiring all aliens, legal or illegal, to register annually, for a fee, subject to State penalties, and that registration scheme conflicted with a federal requirement. 312 U.S. 52. The District Court found that Section 28 bears no resemblance to the Pennsylvania statute. (U.S. Doc. 93 at 107.) Based on the text of Section 28 and its actual (not imaginary) requirements, the finding of the District Court is unassailable: Section 28 does not create an independent, state-specific registration scheme, attempt to register anyone, or create registration requirements in addition to those established by Congress in the INA. The standard for registration provided by Congress remains uniform. (Id. at 108.) The United States is therefore not likely to succeed on the merits. C. The HICA Plaintiffs Equal Protection Argument Also Fails.

Like the United States, the HICA Plaintiffs argue that Sections 10, 12, 18, 27, 28, and 30 are preempted. The State Defendants responded to those arguments above and will now explain why the HICA Plaintiffs are unlikely to prevail on the single, nonpreemption argument they advance here: their claim that Section 28 violates the Equal Protection Clause. As discussed above, Section 28 requires only
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that public elementary and secondary schools request birth certificates to determine the status of children at the time of enrollment. Because Section 28 contains no enforcement mechanism (and does not prevent anyone from enrolling), it does not result in disparate treatment. At bottom, Section 28 is about data collection, not disparate treatment. Some of the individual HICA Plaintiffs complain that Section 28 will deter them from enrolling themselves or their children in Alabama public schools, but as the District Court correctly held, (HICA Doc. 137 at 98-99), none of them have standing on this theory. First, as to any students who already are enrolled in schoolwhich includes John Doe #1 and some individual HICA Plaintiffs school-aged childrenSection 28 simply will not apply to them. That is because enrollment, the trigger for Section 28s status inquiry, occurs only when a student first enters the school system. (See HICA Doc. 137 at 98.) Before this Court, the HICA Plaintiffs speculate that Alabama school officials might retract this understanding of enrollment and begin requiring annual inquiries into students immigration status. HICA Mot. 20. But this unfounded speculation cannot trump the evidence submitted to the District Court, as well as new evidence submitted to this Court, showing that State education officials are implementing

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Section 28 exactly as the State officials have said they would.12 (See HICA Doc. 82-3, attached as Exh. D; Exh. E.) Unless any of these currently enrolled students leave the school system and then later attempt to re-enrolla scenario entirely too speculative to constitute imminent harm for standing purposesthey will never be asked for the information required by Section 28 and thus cannot plausibly be injured by it. It does not matter that one of the Plaintiffs, Jane Doe #3, has children who are likely, in the foreseeable future, to enter the school system for the first time. Jane Doe #3 and her children are all United States citizens, but she argues that school officials might report her husbands unlawful presence. The problem for Jane Doe #3s standing argument here is that none of the documentation actually required by Section 28 could give school officials any inkling about her husbands status. As the District Court found, (HICA Doc. 137 at 97), birth certificates, from whatever issuing authority, do not contain this information. And any follow-up documentsofficial immigration documentation or a sworn parental declaration, 28(a)(4)would speak only to the students status, not the

12

The HICA Plaintiffs cite Harrell v. Florida Bar, 608 F.3d 1241, 1265-68 (11th Cir. 2010), on this point, presumably to imply that the Court should not take the State Defendants word that enrollment occurs only when a student first enters the school system. But that case simply applies the mootness doctrines voluntary-cessation exception and thus hardly speaks to what constitutes a cognizable injury in the first instance. If anything, the case actually supports the District Courts conclusion that Section 28 will not affect students who already are enrolled in the system given its recognition of a rebuttable presumption favoring governmental actors representations about the policies they administer. Id. at 1266. 33

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parents. See Exhibit D. So, far from assuming that school officials would ignore Section 28s express provisions, the District Court recognized, as a practical matter, that there is basically no chance under this provision of school officials ever learning the status of Jane Doe #3s husband.13 The organizational HICA Plaintiffs, finally, lack standing as well. Before this Court, these organizations still have not identified a single member with standing to challenge Section 28. (Cf. HICA Doc. 137 at 100.) They therefore stake their entire claim of standing with respect to this section on the fact that they have spent their own resources educating information-session attendees about this provision. See HICA Mot. 19 & n.28. As they did below, they cite Common Cause/Ga. v. Billups, 554 F.3d 1340, 1350-51 (11th Cir. 2009) (organization engaged in mobilizing voters can challenge statute that raises the cost of voting), and Florida State Conference of NAACP v. Browning, 522 F.3d 1153, 1164-66 (11th Cir. 2008) (same), for the proposition that an organizations expenditure of resources can amount to an injury for Article III purposes. But these two cases and the Supreme Court decision on which they are based, Havens Realty Corp. v.

13

Moreover, even if school officials might learn the immigration status of Jane Doe #3s husband in the course of complying with Section 28, there is no imminent likelihood of someone reporting him to federal immigration authorities. Taken together, Section 28(e) (which merely authorizes the disclosure of personally identifiable information obtained under Section 28 for reporting purposes) and Sections 5 and 6 (which merely require officials compliance with federal immigration law and Act No. 2011-535 in general terms) do not require such a report. The prospect of school officials voluntarily reporting his immigration statusinformation which, again, they are highly unlikely to obtainis too speculative to give Jane Doe #3 standing. 34

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Coleman, 455 U.S. 363 (1982)cannot be extended so far. In each of these decisions, the challenged effectively required organizational plaintiffs to expend additional resources if they desired to continue engaging in established, preconduct activities. In other words, there was a very close connection between the challenged conduct, established activities of the organization that would be frustrated by that conduct, and the expenditure of the additional resources. There is simply no such connection here. As the District Court observed, none of these Plaintiffs have alleged that they are engaged in enrolling aliens, let alone that they have been doing so on an established basis. (HICA Doc. 137 at 101.) To hold otherwise would be effectively to allow any organization to manufacture Article III standing on demand. The HICA Plaintiffs fare no better on the merits of their Equal Protection challenge. The main thrust of that argument is that Section 28 deters the enrollment of children on the basis of their parents unlawful presence in the United States in violation of Plyler v. Doe, 457 U.S. 202 (1982). But that argument misapprehends both the limited holding of Plyler and the effect of Section 28. In addition to recognizing that public education is not a right granted to individuals by the Constitution, 457 U.S. at 221 (citation omitted), Plyler concerned a States policy of outright denying a public education to children who were unlawfully present. See id. at 230. By contrast, Alabama schools remain open under Section
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28 to all children regardless of their immigration status (or their parents status). For that reason, Section 28 does not result in the disparate treatment of students and thus does not implicate the Equal Protection Clause at all. Although Section 28 is written in mandatory terms, it imposes no consequences on any student or parent for failing to comply with itlet alone consequences based on immigration status or any other status. Section 28 is about data collection, pure and simple. See Morales v. Daley, 116 F. Supp. 2d 801 (S.D. Tex. 2000) (upholding against a similar Equal Protection challenge criminal sanctions for failure to complete a U.S. Census form). Even if this Court concludes that Section 28 discriminates in some manner, it is not along any grounds that would require heightened scrutiny. At most, Section 28 requires schools to request additional documentation of some students status beyond a birth certificate. Cf. HICA Mot. 17 n.26. But it is incorrect to say, as the HICA Plaintiffs have implied, that this group consists only of children born outside the United States. Id. This group in fact consists of all students for whom a request for a birth certificate proves inconclusive in determining citizenship, including those whose parents or guardians cannot or will not produce such a document.14 Accordingly, Section 28 must be upheld if it is justified by a rational

14

The HICA Plaintiffs also contend Section 28 requires disparate treatment of children who are presumed to be unlawfully present and children whose parents(s) are not lawfully present in that members of both of these asserted groups are claimed to be subject to reporting 36

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basis. The Alabama Legislatures desire to collect data about the costs incurred by school districts to educate children who are aliens not lawfully present in the United States, Act No. 2011-535 2which seemingly accepts the Plyler Courts invitation to collect this sort of data, 457 U.S. at 229clearly supplies that justification here. IV. THE EQUITIES DO NOT FAVOR AN INJUNCTION PENDING APPEAL. A. The United States Will Not Suffer Irreparable Harm if the Challenged Sections Are Enforced During this Expedited Appeal.

The United States asserts that it will suffer harm in several ways if the challenged sections are enforced while this expedited appeal is pending. First, it claims a constitutional injury whenever Alabama law is allowed to be supreme over federal law. U.S. Mot. 19. That, of course, begs the question and is tied to the merits of the appeal, on which the United States is not likely to prevail. There will be no such injury because federal law does not preempt the challenged sections.15

requirements. HICA Mot. 17 n.26. As explained in the preceding footnote, the notion that school officials will voluntarily report immigration violations to federal authorities is pure speculation, and the HICA Plaintiffs have presented no evidence that would warrant such a finding. 15 See U.S. Doc. 93 at 36 ([T]he court finds the United States has not established a likelihood of success on its claim that H.B. 56 10 is preempted by federal law.); id. at 69-70 ([T]he court concludes that the United States is not likely to succeed on its claim that H.B. 56 12 conflicts with Congressional intent as expressed in provisions of the INA.); id. at 100 ([T]he court finds the United States has not shown a likelihood of success on its claim that Section 18 is impliedly preempted by federal law.); id. at 102 ([T]he court finds that the United States has not established a likelihood of success on its claim that Section 27 is preempted by federal law.); id. at 109 ([T]he United States has not shown a likelihood of success on its claim that Section 28 is preempted by federal law.); id. at 114 ([Section 30] is not preempted.) 37

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And if there is such an injury that is, if the United States is due to win on the merits, which it is not the injury can be undone at the end of this appeal as easily and effectively as it can be done today. Second, the United States claims that the statute is driving aliens from the State of Alabama, thus imposing burdens on other States. Id. The United States has offered no evidence of any burdens imposed on other States. And is the United States effectively admitting that the presence of a person unlawfully present is a burden on the State? Third, the United States claims that the Act is highly likely to expose persons lawfully in the United States, including school children, to new difficulties in routine dealings with private persons and the State. Id. The United States offers nothing but bare assertions on this front, which is hardly sufficient to obtain the extraordinary relief it requests. And fourth, the United States argues that the Act will impact our dealings with other nations. Id. at 19-20. However, as the District Court correctly noted, [t]he United States has not cited the court to a specific conflict between Section 10, or any other Section of H.B. 56, and some Congressionally-granted Executive Branch authority directly relating to foreign policy. (U.S. Doc. 93 at 33.) And, [t]here is no evidence before the court that Section 10, or any other provision of

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H.B. 56, conflicts with Congressional intent regarding national foreign policy goals. (Id. at 36.) The United States claims regarding harm simply cannot be squared with what the District Court found after a thorough consideration of the Act, upon full briefing and argument: The court finds H.B. 56 10 does not stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. (U.S. Doc. 93 at 32.) H.B. 56 12 reflects an intent to cooperate with the federal government. (Id. at 68.) [T]he federal government still retains discretion as to whether it wishes to pursue those found to be unlawfully present. (Id. at 69.) [T]his court finds Section 12(a) is consistent with the purposes of Congress . . . The court is not persuaded that H.B. 56 12 must be preempted because it will result in substantial burdens on lawful immigrants. (Id.) [T]he court finds the United States has not submitted sufficient evidence that Section 12 conflicts with federally-established foreign policy goals. (Id.) [T]this court agrees with the State Defendants that the verification requirements amended by Section 18, do not stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. (Id. at 100.) The United States argues that Section 27 is preempted by federal immigration laws contending that Alabama has impermissibly altered the conditions imposed by Congress upon admission, naturalization and residence of aliens in the United States or the several states. . . . However, nothing shows Congress intended that such contracts would be enforceable. (Id. at 101-02) (quoting U.S. Doc. 2 at 51 of 85.)

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Section 28 does not create an independent, state-specific registration scheme, attempt to register anyone, or create registration requirements in addition to those established by Congress in the INA. (Id. at 108.) [T]he court finds the United States has not submitted evidence sufficient that Section 28 conflicts with federally-established foreign policy goals. (Id. at 109.) [With respect to Section 30, the] United States has not demonstrated that Congress has expressly or implicitly preempted the power of the states to refuse to license an unlawfully-present alien. (Id. at 114.) (citation omitted). Does it really cause harm to the United States when a State informs the federal government of persons who are in violation of federal law, and then leaves it to the federal government to decide whether to initiate deportation proceedings? Does it really harm the United States for the State to gather information about how much it is spending to educate illegally-present children? Of course not. The District Court was right, the United States is wrong, and the United States will not suffer harm if these sections are enforced during the time this appeal is pending. B. The HICA Plaintiffs Will Not Suffer Irreparable Harm if the Challenged Sections Are Enforced During this Expedited Appeal.

The HICA Plaintiffs include advocacy groups, foreign nationals who are present legally, and persons who are unlawfully present. They claim that they will suffer a variety of irreparable harm if the challenged sections remain in effect during this appeal, but the harms they allege are not true harm, are not irreparable,

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are not caused by the Act but by misunderstandings and misrepresentations about the Act, and are grossly exaggerated. Section 10: Section 10 makes it a crime for a person to be (1) an alien unlawfully present in the United States (as determined by federal officials pursuant to federal law) and (2) in violation of either 8 U.S.C. 1304(e) or 8 U.S.C. 1306(a). Thus, anyone guilty of violating Section 10 is already in violation of federal immigration law. Plaintiffs claim that if Section 10 remains in force, immigrants who are currently out of status are now made criminals because they lack alien registration papers. HICA Mot. 8. But such a person is already guilty of violating federal law. Section 10 does not make them a criminal; federal law has already done so. The alleged harm is therefore already caused by the federal laws Section10 is linked to. And such harm is not irreparable, because a person prosecuted for violation of Section10 can plead within the state-court prosecution that Section10 is preempted. Sections 12 and 18: The harm allegedly caused by these sections is that stops and arrests will, Plaintiffs fear, be conducted unreasonably. HICA Mot. 8 (persons are subject to prolonged detention every time they encounter law enforcement.). That is neither what these sections require nor permit. Instead, law

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enforcement officials are required to make only a reasonable attempt to verify status in the context of a lawful stop, and only when practicable. Fears of unwarranted deportation are unfounded. As the District Court found, Section 12 requires that State and local officials communicate with the federal government, in certain circumstances, regarding citizenship status. However, [t]he statute does not require the federal government to act upon this information; therefore, the federal government still retains discretion as to whether it wishes to pursue those found to be unlawfully present. (U.S. Doc. 93 at 68-69.) To the extent Plaintiffs claim that Sections 12 and 18 will harm them because State officials will apply these provisions incorrectly (and conduct unreasonable searches and seizures), there is no evidence that any such case will occur. But if such a case ever arises, it can be addressed, if they arise, in an asapplied challenge. To the extent any person claims that he will be harmed by the Act because he is here unlawfully but has not been caught, and as a result of the Act he will come to the federal governments attention, then he is no more harmed by Alabamas law than by the federal immigration laws he is already violating. Section 28: There is absolutely nothing about Section 28 that prevents any child from enrolling in school; the provision is nothing more than data collection. If parents are keeping children away from school because of a misunderstanding about what the law does, or due to exaggerated statements by the laws opponents,
42

Case: 11-14532

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Page: 46 of 51

that is unfortunate, but such harm is not caused by Section 28. As the District Court noted, [a]ny injuries caused by intentional or unintentional misapplication of H.B. 56 cannot be said to be the result of implementation and enforcement of the Act. (HICA Doc. 147 at 3.) Sections 27 and 30: Section 27 does not strip anyones contract rights, but provides that State courts may not enforce certain contracts if a party knows that the other party is present illegally. Section 30, as construed by the District Court, prevents the State from issuing certain licenses to persons unlawfully present. Here is a good example of how the harm allegedly caused by these sections is insufficient to entitle the Plaintiffs to extraordinary relief: The HICA Plaintiffs assert that a family was told by the electric company that it could not have power service restored to its home unless it could prove its qualifying immigration status, prompting the family to leave. HICA Mot. 3. However, Plaintiffs also note that [s]ince this incident came to light, representatives of Alabama Power have contacted counsel for Appellants and informed them this is not their policy and it should not recur. Id. at n.9 (emphasis added). The alleged harm has already been cured. There are two main types of harm that Plaintiffs claim will result from the Act. The first is that persons who have violated federal immigration law and are here illegally now feel less secure in their law-breaking. Such a notion is
43

Case: 11-14532

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Page: 47 of 51

insufficient on its face. The second is that people will be harmed because of misunderstandings or misapplications of the law. As the District Court correctly found, such harm, if it occurs, is not caused by Act No. 2011-535. (HICA Doc. 147 at 3.) The Plaintiffs therefore have not met their burden of showing that irreparable harm will occur if the challenged sections are enforced during the brief time that this appeal is pending. C. The State and the Public Will Be Harmed if a Valid Legislative Enactment Is Left Unenforced, and On-Again, Off-Again Enforcement Will Confuse the Public.

To meet their burden for an injunction pending appeal, Plaintiffs must show not only a likelihood of success on the merits and irreparable harm, but must also show that there will be (3) no substantial harm to other interested persons; and (4) no harm to the public interest. Touchston, 234 F.3d at 1132 (emphasis added). They have not, and cannot, meet this burden. The State, and the public, will be harmed in at least two ways if the challenged sections are enjoined. 16 The first is that if the Plaintiffs motions are granted, a valid enactment of the State of Alabama will not be recognized and enforced by the courts as embodying the will of the people. See Atkin v. State of Kansas, 191 U.S. 207, 223 (1903).

16

The State Defendants also rely upon the interests set forth in Section 2 of Act No. 2011-535. 44

Case: 11-14532

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Page: 48 of 51

When a States validly enacted statutes are at stake, those enactments should be recognized and enforced by the courts as embodying the will of the people, unless they are plainly and palpably, beyond all question, in violation of the fundamental law of the Constitution. Id. Indeed, the public interests imperatively demand this result. Id.17 For this reason, the harm which would result from an injunction barring enforcement of [these Sections] tips in favor of [State] Defendants and the public, both of whom have an interest in noninterference by a federal court in a states legislative enactments. Reed v. Riley, 2008 WL 3931612, at *3 (M.D. Ala. Aug. 25, 2008) (citing Atkin, 191 U.S. at 223). The second type of harm is that now that the challenged sections are being enforced, halting enforcement on an interim basis will confuse law enforcement and the public. On-again, off-again enforcement will only muddy the waters and confuse the public. It bears noting that now that the challenged sections are being enforced, the relief the Plaintiffs seek would not preserve the status quo, but change it. In light of the negligible harm (if any) that Plaintiffs will suffer if the challenged sections are left in force during this expedited appeal, compared to the harm to the State and the

17

As the District Court recognized, preliminary injunctions of legislative enactments interfere with the democratic process. (HICA Doc. 137 at 2, quoting Ne. Fla. Chapter of the Assn of Gen. Contractors of Am. v. City of Jacksonville, Florida, 896 F.2d 1283, 1285 (11th Cir. 1990)). 45

Case: 11-14532

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Page: 49 of 51

public of changing the rules again and again, the equities do not favor such drastic relief.

V.

CONCLUSION.
The District Court has "carefully and thoroughly reviewed all issues raised

by the parties and its lengthy Memorandum Opinion represents the product of its time and effort. It does not foresee a 'substantial' case for reversal." (U.S. Doc. 99
at 3; HICA Doc. 147 at 2-3.) And this Court has entered an order expediting these appeals. Briefing

will be complete by November 29, and the ultimate issue on

appeal is the same one at issue in these motionso namely, whether Plaintiffs are

entitled to a preliminary injunction barring enforcement of sections of the Act.

Two months of enforcement will not cause such harm to justi$r deciding
issues of this complexity and importance on abbreviated briefing.

It can wait long

enough for this Court to have the benefit of the parties' merits briefs. For all these
reasons, the

Plaintiffs' motions for injunction pending appeal should be denied.

Respectfully submitted,

LUTHER STRANGE (ASB-003 6-G42L) Attorney General

John C. Neiman, Jr. (ASB-8093-O68N) Solicitor General

Elizabeth Prim Escalona (ASB-7447-H69F)

46

Case: 11-14532

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Page: 50 of 51

Deputy Solicitor General Margaret L. Fleming (ASB-7942-M34M) James W. Davis (ASB-4063-I58J) Misty S. Fairbanks (ASB-1813-T71F) William G. Parker, Jr. (ASB-5142-I72P) Joshua K. Payne (ASB-1041-A55P) Assistant Attorneys General OFFICE OF THE ALABAMA ATTORNEY GENERAL 501 Washington Avenue Montgomery, Alabama 36130-0152 Telephone: 334.242.7300 Facsimile: 334.353.8440 jneiman@ago.state.al.us pescalona@ago.state.al.us mfleming@ago.state.al.us jimdavis@ago.state.al.us mfairbanks@ago.state.al.us wparker@ago.state.al.us jpayne@ago.state.al.us Attorneys for the State Defendants

47

Case: 11-14532

Date (51 of 10/11/2011 Filed: 130)

Page: 51 of 51

CERTIFICATE OF SERVICE
hereby certi$z that on October 11,2011, electronic mail:
Beth S. Brinkmann Mark B. Stern Michael P. Abate Daniel Tenny United States Department of Justice Civil Division, Room 7215 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530-000 1 beth.bri nkmannfdu sdo i . qov
mark. sternfd,u sd oi . eo v michael. abate@)usdoi . eov daniel.tenny@)usdoi. qov

served the following by

Samuel Brooke SournBnw PovBRrv Law CshrrEn 400 Washington Ave. Montgomery, AL 36104 s amuel bro oke(a) spl center. orq
.

Michelle R. Lapointe SourHsRN PovnRrv Lew Cnn-ren 233 Peachtree St. NE, Suite 2150 Atlanta, GA 30303
michel I e.l apointe@).splcenter.ore

48

Case: 11-14532

Date(52 of 130) Filed: 10/11/2011

Page: 1 of 79

Exhibit A
to State Defendants Opposition to the Appellants Motions for Injunction Pending Appeal, October 11, 2011

Case 5:11-cv-02484-SLB Document 110-1 Filed 08/15/11 of 79 1 of 33 Case: 11-14532 Date(53 of 130) Filed: 10/11/2011 Page: 2 Page

FILED
2011 Aug-15 PM 11:51 U.S. DISTRICT COURT N.D. OF ALABAMA

EXHIBIT A

Case 5:11-cv-02484-SLB Document 110-1 Filed 08/15/11 of 79 2 of 33 Case: 11-14532 Date(54 of 130) Filed: 10/11/2011 Page: 3 Page

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As of March 2o1o, 11.2

million unauthorized immigrants were living in the United States, virtually unchanged from a year earlier, according to new estimates from the Pew Hispanic Center, a proiect ofthe Pew Research Center. This stability in goro follows a h^ro-year decline from the peak of rz million in zooTto u.t million in roog that was the first signiflcant reversal in a Mo-decade pattern ofgrowth.

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The number of unauthorized immigrants in the nation's workforce, B million in March zo1o, also did not differ ftom the Pew Hispanic Center estimate for zoo9. -\s with the population total, the number of unauthorized immigrants in the labor force had decreased in zoo9, from its peak of 8.4 million in zoo7. The number of childrenborn to at least one unauthorized-immigrant parent in aoog was Bso,ooo, ps$c*tj"alb' {:l}qfiaru{} i.1$-{-w#$-jt yffiJ.:LieJ. An analysis of the year of entry of rrnauthorized immigrant parents of babies born in zoog indicates that 6r% arrived before

zoo4, 3o% arrived from aoo4 to 2oo7, and 9% arrived from zoo8 to 2o1o.
According to the Pew Hispanic Center, unauthorized immigrants made tp 3,7Yo of the nation's population and 5.2% of its labor fbrce in March roro. Births to unauthorized immigrant parents accounted for B% of newborns from March poog to March ?o1o, according to the center's estimates, which are based mainly on data from the government's Current Population
Survey.

www. pewnlspBn'c.(}rg

Case 5:11-cv-02484-SLB Document 110-1 Filed 08/15/11 of 79 4 of 33 Case: 11-14532 Date(56 of 130) Filed: 10/11/2011 Page: 5 Page

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in the number from Mexico, which went down to 6.5 million in zoro from z million in zoo7. Mexicans remain the largest group of unauthorized immigrants, accounting for 58% ofthe total.

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immigrants. The number has decreased in Colorado, Florida, NewYork and Virginia. The combined unauthorized immigrant population of three contiguous Mountain West statesArizona, Nevada and Utah-also declined.

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The number of unauthorized immigrants may have declined in other states as well, but this cannot be stated conclusively because the measured change was within the margin of error for these estimates.

In contrast to the national trend, the number of rrnauthorized immigrants has grown in some West South Central states. From zooT to zoto, there was a statistically significant increase in the combined unauthorized immigrant population of lnuisiana, OHahoma and Texas. The change was not statistically significant for these states individually, but it was for the combined three states. Texas has the second largest number of unauthorized immigrants, trailing only California.
Despite the recent decline and leveling off, the number of unauthorized immigrants living in the United States has tripled since r9go, when it was g.S million. The size of this population grewby a third since pooo, when was 8.4 million.
The estimates are produced using a multistage method that subtracts the legal foreign-born

population from the total adjusted foreign-born population, with the residual then used as the source of information about unauthorized immigrants. The source of these data is the U.S. Census Bureau's March Current Population Surveys.

tlrww. pewhispanic,org

Case 5:11-cv-02484-SLB Document 110-1 Filed 08/15/11 of 79 5 of 33 Case: 11-14532 Date(57 of 130) Filed: 10/11/2011 Page: 6 Page

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ftom sample surveys, they are subiect to uncertainty from sampling error, as well as other types of ertor. Each annual estimate of the unauthorized population is actually the middle point of a range of possible values that could be the true number. Additionally, the change from one year to the next has its own margin of error.
Because these estimates are derived Because of the margin of error in these estimates, two numbers may look different but cannot

be said definitively to be different. For example, there is no statistically significant difference between the estimate of the unauthorized population for aoog (rr.r million) and the estimate for zoro (u.z million). Similarly, some state estimates for single years are based on small

samples; especially in less populous states, two single years should not be compared.
These ranges represent 9o% confidence intervals, meaning that there is a go% probability that

the range contains the true value.

Although the estimates presented here indicate trends in the size and composition of the unauthorized-immigrant population, they are not designed to answer the question of why these changes occurred. There are many possible factors. The deep recession that began in the U.S. economy in late zooT officially ended in eoog, but recovery has been slow to take hold and unemployment remains high. Immigration flows have tended to decrease in previous periods of economic distress.
The period covered by this analysis also has been accompanied by changes in the level

of

immigration enforcement and in enforcement sffategies, not only by the federal government but also at state and local levels. Immigration also is subject to pressure by demographic and economic conditions in sending countries. This analysis does not attempt to quantify the relative impact of these forces on levels of unauthorized immigration.

www, Fewhl$p;lr"lif . 0rq

Case 5:11-cv-02484-SLB Document 110-1 Filed 08/15/11 of 79 6 of 33 Case: 11-14532 Date(58 of 130) Filed: 10/11/2011 Page: 7 Page

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This report estimates the size of the unauthorized immigrant population, as well as the unauthorized immigrant labor force for the nation and each state in March zoro. For the nation, it also describes this population by region or country of birth and arrival period, For some of these variables, the report provides annual trends from eooo onward. Updating and expanding on an earlier report about U.S.-born children of unauthorized immigrants, the report provides estimates and trends for the status of children of rrnauthorized immigrants as well as information about their parents' period of arrival and country of origin. The Pew Hispanic Center estimates the unauthorized immigrant population using the "residual method," a well-dweloped and widely accepted technique that is based on official government data. Under this methodolory, a demographic estimate of the legal foreign-born population-naturalized citizens, legal permanent residents, temporary legal residents and refugees-is subtracted from the total foreign-born population. The remainder, or residual, is the source of population estimates and characteristics of rrnauthorized immigrants.
These Pew Hispanic Center estimates use data mainlyfrom the Current Population Survey (CPS), a monthly survey of about S5,ooo households conducted jointlybythe U.S. Bureau of

Labor Statistics and the Census Bureau. It is best known as the source for monthly unemplognent statistics. Each March, the CPS sample size and questionnaire are expanded to produce additional data on the foreign-born population and other topics. The Pew Hispanic Center estimates make adjustments to the government data to compensate for undercounting of some groups, and therefore its population totals differ somewhat ftom the ones the government uses. Estimates for any given year are based on a March reference date.
Because of small sample size in many states and potentially large sampling variability, some

state estimates presented are based on multiyear averages. For the 34 states with fewer than So cases of unauthorized immigrant horrseholds in the aoro sample survey, the estimates for

that year are an average of eoog and zoro. These states are Alabama, AJaska, Arkansas, Delaware, Hawaii, Idaho, Indiana, Iowa, Kansas, Kentuclgr, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Mexico, North Dakota, Ohio, OHahoma, Pennsylvania, Rtrode Island, South Carolina, South Dakota, Tennessee, Utah, Vermont, West Virginia, Wisconsin and Wyoming. Estimates for other states and for the District of Columbia are based soleJv on 2o1o data.

www. pnwhis;panic. org

Case 5:11-cv-02484-SLB Document 110-1 Filed 08/15/11 of 79 7 of 33 Case: 11-14532 Date(59 of 130) Filed: 10/11/2011 Page: 8 Page

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All sooz state estimates were derived by calculating the average share of the national unauthorized immigrant population for eoo6-soo8 that was held by each state, then applying that share to the eooT national total.
For more detail, see the Methodology appendix.

A Mote

@w

Terminffilo$y

"Foreign born" refers to an individual who is not a U.S. citizen at birth or, in other words, who is born outside the U.S., Puerto Rico or other U.S. territories and whose parents are not U.S. citizens. The terms "foreign born" and "immigrant" are rrsed interchangeably.
"U.S. born" refers to an individual who is a U.S. citizen at birth, including people born in the United States, Puerto Rico or other U.S. territories, as well as those born elsewhere to parents

who are U.S. eitizens. The "legal immigrant" population is defined as people granted legal permanent residence; those granted asylum; people admitted as refugees; and people admitted under a set of specific authorized temporary statrues for longer-term residence and work. This group includes "naturalized citizens," legal immigrants who have become U.S. citizens through naturalization; "legal permanent resident aliens," who have been granted permission to stay indefinitely in the U.S. as permanent residents, asylees or refugees; and "legal temporarymigrants," who are allowed to live and, in some cases, work in the U.S. for specific periods of time (usually longer

than one year). "Unauthorized immigrarts" are all foreign-born non-citizens residing in the countrywho are not "legal immigrants." These definitions reflect standard and customaly usage by the Department of Homeland Security and academic researchers. The vast majority of unauthorized immigrants entered the country without valid documents or arrived with valid visas but stayed past their visa expiration date or otherwise violated the terms of their admission. Some who entered as unauthorized immigrants or violated terms of admission have obtained work authorization by applying for adjustment to legal permanent status or by obtaining Temporary Protected Status (TPS). Data are very limited, but this "quasi-legal" group could account for as much as ro% of the unauthorized population. Many could also revert to unauthorized status. "Chilfuen" are people under age rB who are not married. "Adults" are ages rB and older.

www, pewhisxtij rlid. fi rci

Case 5:11-cv-02484-SLB Document 110-1 Filed 08/15/11 of 79 8 of 33 Case: 11-14532 Date(60 of 130) Filed: 10/11/2011 Page: 9 Page

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"Children of unauthorized immigrants" or "children of unauthorized immigrant parents" inciude both foreign-born and U.S.-born children who live with at least one unauthorized immigrant parent.

&hout the

Authmx-m

S. Passel is a senior demographer at the Pew Hispanic Center. He is a nationally known exper.t on immigration to the United States and on the demography of racial and ethnic groups. In zoo5, Dr. Passel was made a fellow of the American Statistical Association, which cited his outstanding contributions to the measurement of population composition and

Jeftey

change. He formerly served as principal research associate at the Urban Institute's [,abor, Human Services and Population Center. From rg87 to 1989, he was assistant chief for

population estimates and projections in the Population Division of the U.S. Census Bureau.

DTera Cohn

is a senior writer at the Pew Research Center. From rg85 to eoo6, she was a

reporter at The Washington Post, where she wrote chiefly about demographic trends and immigration. She was the newspaper's lead reporter for the zooo Census. Reconnmrmrxded Citatimnt
Jefifrey S. Passel and DVera Cohn. "Unauthorized Immigrant Population: National and State

Trends, 2o1o." Washington, DC: Pew Hispanic Center (Febnrary r, eorr). &akrxCIwledgm'umrnts
Paul Taylor provided editorial guidance in the drafting of this report. Daniel Dockterman and

Gabriel Velasco prepared the charts and tables for this report; Daniel Dockterman checked its charts, tables and maps. Michael Keegan prepared the maps for this report. Marcia Kramer
served as conv editor.

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pewhispanic"org

Case 5:11-cv-02484-SLB Date (61 of 110-1 Filed 08/15/11 Page 9 of 33 Case: 11-14532 Document 10/11/2011 Page: 10 of 79 Filed: 130)

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Abwnxft

the Fmw HisPmnic Cemter

The Pew Hispanic Center is a nonpartisan research organization that seeks to improve public understanding of the diverse Hispanic population in the United States and to chronicle Latinos' growing impact on the nation. It does not take positions on policy issues. The Center is part of the Pew Research Center, a nonpaftisan "fact tank" based in Washington, D.C., and it
is funded by The Pew Charitable Trusts, a Philadelphia-based public charity. All of the Center's

reports are available at www.pewhispanic.org.

The staffof the Pew Hispanic Center is:
PauITaylor, Director
Rakeslr Kochhar, Associate Director for

Research Richard Fry, Senior Re.$eorchAssocicfe Gretchen Liuingston, Senior Researcher Daniel Docktermun, Researchds'sisfanf

Mark Hugo Lopez, Associate Director

Jeffreg S. Passel, Senior Demographer GabrielVelasco, ResearchAnalgst

Mary Seaborn, Administratiue Manager

www, pewhispanic.nrq

Case 5:11-cv-02484-SLB Document 110-1 Filed 08/15/11 Page 10 of 33 Case: 11-14532 Date (62 of 10/11/2011 Page: 11 of 79 Filed: 130)

Pew

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#drlrtei

Comtmxrts

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I i.{.}l!

Overview

A Note on Terminology About the Authors

Recommended Citation

6 6
6

Acknowledgments About the Pew HjsRanic Center

Current Estimates and Trends

Births and Children State Settlement Patterns
Workers References

I
L2 L4 L7

18
2
_L:

Appendix A: Additional Tables and Figures

B: Methodology Appendix C: Maps

Appendix

25

28

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Curnent ffistimates and Trends

The shrinkage of the unauthorized immigrant population from its 2oo7 peak apparently has halted, at least temporarily. According to Pew Hispanic Center estimates, there were rr.2 million unauthorized immigrants living in the United States in March zoto, statistically unchanged from the March eoog estimate of rr.r million. The Pew Hispanic Center's March zoog estimate had represented the first reversal in the size of the r:nauthorized-immigrant population in two decades. There were 3.5

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million unauthorized immigrants living in the United States in r99o, a number that grewto 8.+ million in zooo. The population leveled off for two years and grew steadily from 2oo3 to zao7lwhen it peaked at re million. From eooT to 2oog, it shrankby B%.'
Unauthorized immigrants represented e8% of the nation's foreign-born population of 4o.e million in March zoto, according to the Pew Hispanic Center estimates. The share is the same as it was in eoog but a decline from
zooT's
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{}

(10.7 - 11,7) (10.6 - 11.6)

/11 1 - 1? l1 \rrr+

I lir ffi#ll

2009 3008 :{J#7

116

11.1

2fi$*
ztli)$
2004

12.O 11.3

(11.s - 12.s)

11.1 10.4
9.7 9.4

(10.8 - 11.8) (10.6 - 11.6)

2003 2{J$:

l*$l

9.3
8,4 I
l\' i,

?#*{}
frJ+tr,:lil iitni:r+:r fdlpi'etrjntfi
p

(9.9 - 10.8) (9.2 - 10.2) (9.0 - e.e) (B,B - e,7) (7.s - B,B)

tile hililfi{iii of' tfi4' c';rtinratfltl {:l{}r:4r ciirlliijfitttt if!i.']f'/iri, liiolr:fidit i!ltJiciii:*$. lrtfi clt.]no+: iir];'rr tttit
r+\'
irJi.l

i; yt"r

:,: :i;t4 t i$t; i u3

i{.1 r ! i

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liourt+; !'4rr
p+i.]il
1;r

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til Mirrrh
l'1r1.
1

esIintattii

tjiirl{i1ii d11 r+ditirial

iiilppirrrrttrlLLr l#

tilt ilrrr.i;

The other components of the foreign-born

1.iilil tiu

rvrj'/. $ef,

!il{io J+ij.l.

PEW RESEARCH CENTER population are its z9 million legal immigrants: r4.g million naturalized citizens, rz.4 million permanent residents and r.7 million legal temporary migrants. The number of naturalized citizens grew significantly from r3.7 million in aooT; this increase is part of a longer-term trend in which lyulflqrnruffa[$$-q]:-q-$lnositrs . The number of legal permanent residents or legal temporary migrants showed no significant change.

,].hesetreid5arecon5i$tent'rtithe5tilnate$frolYtti1e[leDartment0fH0nl*laidliecirity.whichU$ssa$ifilit|l}1ethod0lo-cly[Uta
dlfferent deta sourr-e, the Census #urr+u'g Afferican Conrmufiil;y Survey. The DHS estiffidLe$i al$o indicate that the Hn+ilthsrir6t, ir$ffii[Jrant populatioft pftakf;d in ?007, f,t 11.f3 rnillion.

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Case 5:11-cv-02484-SLB Document 110-1 Filed 08/15/11 Page 12 of 33 Case: 11-14532 Date (64 of 10/11/2011 Page: 13 of 79 Filed: 130)

10

Few iJisr,#rriil {'eflter

The decline in the size of the unauthorized immigrant Tmfu*m ffi population from its peakin Fore&grn*horrt Pspfi.$ffmfiion &*W B-ega$ ffi*mt**su ?S$'ffi 2oo7 appears to be driven (populutioninmillions) mainly by a decrease in the share of Forels$ number of such immigrants Born Fopulatior*

unauthorized immigrants from Mexico. In zoro, the number of Mexican

had declined to 6.5

Naturalized citizens t""1,1":"ttu"ent resident Legal tempofary

migrants

14.9 LZ,4 L.7

37o/o

3to/o
4o/o

million.

]]l :. l;iourcr::;
til{,j

-,.flll-'Ftrrrrr
i

riic'r

r1+"r

iitiirr t+ i'tiiri dut t$ ri)ilfrtJ;ri{j'

Cil rf fl

rf

+s1:iil}i}fi}:ir hir;td ofi auq{11{trll:{ti Pt}i}il I'Jtiiln iiit rvtlrr . Sr:t Ht*.r}od;ft lil{ly.

i{iit0.tni( (:trtt{if

fi}f{it litipplftlen'i$

t$

Theunauthorizedpopulation

pEWRE5EAR6HSENTER

from Mexico had grown steadily from zoot, when it was 4.8 million, to its peak level in zoo7.After that, there were no statistically significant changes in the Mexican-born unauthorized population until aoto, when the number showed a decline from three years earlier.

In a report last year, the Pew Hispanic Center concJuded that inflows of unauthorized immigrants from Mexico had fallen off sharply, presaging the decline found in the zoro estimates. According to the center'$ estimates, an average of t5o,ooo unauthorized immigrants from Mexico arrived annually during the period from March soo7 to March 2oog, which was ToYo below the annual average of 5oo,ooo during the first half of the decade. In addition to reduced inflows, the other ways in which an unauthorized popululion sotrld decline are via an increase in the number of migrants voluntarily leaving the country, deportations, deaths or conversion to legal status. As the Pew Hispanic Center has previously reported, although many Mexican migrants voluntarily return home each year, therql is rur er.icie**qr'fll*t this numrll*lr h#r Slorur in re**ltt yt*lrs.
Ft#lnovals {q-tqril*:tiiti{rns'i }:avfl ilrr{}r'r thfiil clouhlerd over the past decade, reaching almost 4oo,ooo in fiscal 2oog. Mexicans have constituted the ma'iority of deportations for at least the

past decade. In eoog, more than 7o% of deportees were Mexican, according to the Department of Homeiand Security.

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Case 5:11-cv-02484-SLB Document 110-1 Filed 08/15/11 Page 13 of 33 Case: 11-14532 Date (65 of 10/11/2011 Page: 14 of 79 Filed: 130)

11

lJrr+utJr+i'irer.i irrtrr,ifrr;lnt

t'onulalir:*: i\;*l.irinai

ancJ

$ti*tili TI'onrls, 7ili.{i

relativelyyomg, mortality is not likelyto be an impoftant factor. As for conversion to legal status, that is more difficult now than in the lggos or earlier; the number of all g_ielus
Because this population is

*rliustmer:1s ilr the last three y*:ilrs i$

il$Ehfl!fl ecl from average levels for aool-Poo6, according to figures from the Department of Homeland Security's Yearbook of Immi gration Statistics.
By contrast to the decline

2 ffistimatmw
F$gnx*-w

&$mmwtrhorized Hrwrw*$grant Fopnx$mtfr mffi frerr'$ ff4mm&ecl, ?O0m*#ffi Kffi

mS

the U.S.

(millioru;)

! ;,;E'"-uu'' !u, ! *,

of Mexican unauthorized immigrants, the total estimated unauthorized 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 population from other nations in latin America fJcrle"q.l liafii irrCic*tr Iilw At!iJ r!:fii: ;:lritill; *i fil{1 iit]ilrOXifiliJtil flil0/'r i.:tltiirlrit]rit itrterv.ll. ihtr syrrrlol s ifrilliilt+$ ih{ii {iraflqi: fri}ln tilirj i:rfrivii:iLr:i }-+iii i.'i $taiislii'irll-v iiirlnif:Ld1!t:. was was similar to what it 5()Uri:e:t{.l'i.Jl-{i5t};tl1ii:d4ftf|e5tiIff|'t1i;i.li;l;+r.ittlr+r'dr'ritjnttr"ihtlclt|+,J,/;r#ijlif'i{j in zoo7. The population l Poil{.r iaf i l * r'vt:v. litt 14rth ddoiilitv. fi u Ltpkl rrr*irt5'i# thr,: il.uf from nations outside l-atin PEW RESEARCH CENTER America in zoro also was no different from its eooT total. Estimating change in rrnauthorized immigration from these nations is difficult, because the relatively small sample size makes for more volatility in year-to-year population changes.
f ql11 1fi i

Mexicans make up the majority of the unauthorized immigrant population, 58%, or 6.5 million. Other nations in Latin America account for z3o/" of unauthorized immigrants, or 2.6 million. Asia accounts for tt%, or about r.3 million, and Europe and Canada account for 4%, or 5oo,ooo. African countries and other nations represent about g%, or 4oo,ooo.

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12

I'ew l-lisflui:r'ti{ {leilrier

ffiirths mnd fihildrexr

Among births from March zooq to March 2o1o, B5o,ooo newborns had at least one unauthorized parent, a ntrmber that statistically is no different from the estimate of

F*gwne 3

Wmrents' Fer*md of Arrfrwm$ ffifrrths to ffimmuthoriped

Xmxnrm$gnants
$$"s

fsr U.$-

ffiffiOP

34o,ooo publishedbythe Pew Hispanic Center f'or zoo8-eoog.

These newborns represented 8% of all births

during this period, the same share as for the previous year. Unauthorized immigrants represent about 4% of the U.S. population but are relatively young and have high birthrates, which is why their newborns make up a higher
share of all births.
ltiliiti.<.ii Lii{ilri ilii;uf: riltj f"lilrrh :li}{}ii-.$1arrh 2ilLil barr,tcl +tr 0{}pt1lii1.;ofi $r:r}+r ;+qr i. EstilTldt'i ir bilrli:irl ilfi lir41 lrlo$i

f+adrilti! irrfivtld p;lreftl. f41rfl+fi1:il{les Ina} noi; atli: i:t: i$ll+.',i

Among all hirths in the U.S. in zoog-2o1o, T4Towereto U.S.-born parents andtTo/o to legal immigrants.

i;r.tiililriil oi t it*irLIirtl.

5ilLlrtfli
l"1ari:h

$uIpieil':ntr

P{-,\'i FiitDanit i-l+rl:{{r 1|litiiltatil."i hitiittJ or: ituilrrltirtlaiii li:) i:hdtr i..r.ttrtlnl lrttl:t;l+i:it:n i:iit.Hvey. Str:

l'4i,Ir+d0lrliry.
PEW RESEARCH CENTER

Figune 4 Fanents* ffi&atus fwr ffifrrfftrs in

?ffi{$ffi

The Pew Hispanic Center analysis also examined year-of-arrival patterns for r:nauthorized

Legal

Immigrants
170k

immigrant parents of babies born from March soog to March 2o1o, to see how long the parents had been in the United States before their children were born. If year of arrival was available for both parents, the analysis used the most recently arrived parent.
According to the analysis, 9% of these rrnauthorized immigrants who had babies in

l\ili.ririi tiirtnj:; tli:{:ljrriir"f i.1ilr'cir 110fiii -F'litftft l-l};ii Liit$etj !tir tlilililliliclr'r rItill]r ilrJ+ i, I'trtrrni:irllilili rTlfiV rl.Jl. 'llirj tt: l[]{lcij f]ft i. iJU${ l.1i !'ililndrtlJ. lit)trr,tr lr'r l-lr$pirrli{ i:lriiltei *jtit,}riiii:t:j tliltjt}il {,}lr illJi:IIl{:i11i:{iiJ fi'rr.Ir lili.rpi+r:'r*lrt! li titri i:trfrf,ill i'{l;:xildtj#n i";{.Jrvry. li{jili
It1{ith{iili-1lii{,1},.

PEW RESEARCH CENTER

zoog-polo had arrived in the U.S. in eoo8 or later. An additional 3o% arrived from eoo4 to ?ee7t and the remaining 6r% arrived in the United States before aoo4.

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Case 5:11-cv-02484-SLB Document 110-1 Filed 08/15/11 Page 15 of 33 Case: 11-14532 Date (67 of 10/11/2011 Page: 16 of 79 Filed: 130)

13
I.J

*i".lrJtl'}*r

i;ec

i m Jr

irJ

r* iri: pop

ifi

litJfi

flfilti{)na! afirj $t;iii{i Trencjs, -}010

As with previolrs analyses, the Pew Hispantc

Center finds that among alJ children of unauthorized immigrants*an estimated 5.5

W&6ure S fffuff#dnen w{t$'s mfi Least One Unmux&$q*nieed Inrm$gn"amft Parerltu

million in eoto-a growing share was born in the United States and therefore they are U.S. citizens by birthright.
Among children of unauthorized immigrants, an estimated 4.5 million are U.S.-born; 1

hy $tatuxw, ffiS00-2CILffi
(millions)

million are foreign-born and therefore unauthorized. The number of unauthorized children has declined from a peak of r.6 million in eoo5. The number of U.S.-born children has more than doubled from z.r million in zooo.'
0

The r4th Amendment to the U.S. C,onstitution, adopted in 1868, grants an automatic right to citizenship to anyone born in the United States. In recent months, some prominent national and state elected officials have urged that this

2000
l.,iftttt {.litii{irf il
ilt ;t fI
I

2005
ilFdr

2010

lrrii}i}li

trtt{i+r i:;{!ti

iii Hr{)

;rrr,l rroi:

i;i

il

iiiflrrlt: Pgw fiitillijili.; (j,lfiitlr ttilfir;!til::; bai;{.i illr aUi;:Iiurlir;idl fi;ri;ir llr.tpFrlt:ff:+r1lii tl) tlilil i:rii|tlfii PilF)illittrorr ijirr.rtly. iirtr',
l.iel lrilr:i0l+llf
.

PEW RESEARCH CENTER right be repealed at the national or state level, on the gtounds that it attracts unauthorized immigrants to the United States. A rratitlItwulq $iHyey-hti}e l'ew K*r$#ixlr dl-ftk$q{ found that registered voters are split (46o/oto 46%) about whether to amend the Constitution to end birthright citizenship. A majority of Republican respondents (62%) favor amending the Constitution, compared with about half of independents (+8%) and a minority of Democrats

(go7o).

Mexico is more dominant as a country of origin among unauthorized-immigrant parents than it is among all unauthorized immigrants. Among children with at least one unauthorized immigrant parent, To%ohave parents from Mexice, tlo/o from other Latin American countries,

7%fromAsia, z% from Europe and Canada, and 3% fromAfrica and other nations.

tn;,J0$, tltere wsrr an eslitfi,rt{id 4 rnillion U.S.-b#rn chit{]rfln of $ilauthorizod irilffiifraftf, U$fr5 ilre cautioned thdt the 8stif11ate5iordenrngr.a;rtric*$flponent5ofc|rang'l,iic|tt}:;btrth5,maynotheenli|gly*.,l1!iif,t{i|t1tJjt|la|)|)arent
because of thd Foi:*fttially large samplirrg Brrtlr ir! veilr-t$-year differences.

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Case 5:11-cv-02484-SLB Document 110-1 Filed 08/15/11 Page 16 of 33 Case: 11-14532 Date (68 of 10/11/2011 Page: 17 of 79 Filed: 130)

14
F#Br
1-l

i#i;*l frii:.

{]#t:lilr

State Smttlernemt Pattenmm

Analysis of state trends from zooT to zolo indicates that four states had a statistically significant decline in their popuiations of r:nauthorized immigrants, and the combined population of three other contiguous states in the Mountain West decreased. There was a statistically significant increase in the combined population of three contiguous West South Central states. No other states had statistically

significant change over this period.

The four individual states where the number

S $tmtmw wfifrfs !-arge$t

Wmfu$e

&.$$tffi

e$fifr*mnized

of

Immigrautt Fmp**$ations, zff S.ffi

(thotnands)
ir$liffiated
F*pul;*fion
Rafl$e

unauthorized immigrants declined from March goo7to March 2o1o were NewYork, Florida, Virginia and Colorado. Additionally, the combined unauthorized immigrant population inArizona, Nwada and Utah also decreased during that period, although the change was not statistically signiflcant for any ofthose states individually. Florida had an estimated 8e5,ooo unauthorized immigrants in eoto, a decline from r.o5 million in zoo7. Nevertheless, Florida continued to rank third among states in the size of its unauthorized immigrant population. New York's estimated unauthorized immigrant population in 2o1o, 625,000, declined from an estimated 8z5,ooo in zoo7. New York ranked fourth in the size of its unauthorized population in ao1o, as it did in 2007.

$$Hi$ffiilii 'lr Llll# Iffifiil#- iit tl"zoolii 2,550 (2,350 - 2,750) California
1,650 Tex*lr FlorirJa 825 Ileui Y$rk 625 550 [!e\"r Jersey 525 trflin+ir; 425 Genrqi* 400 Arizona Notth {"lernalincr 325 Marvl*nrl 275 230 Washinqton vir{Jrnii} 210
(1,450 (725 (525 (425 (425 (300 (?75 (240 (200 (140 (170

1,850)

- 550) - 500)
- 325) - 325) - 250)

950) 725) 650) 625)

- 425)

l,'l#fi',: l{;tt{jti ftj!tri;rrii|l1l:i AitptOXtr't'lat-r:.9ilr.,':r r;{nilidi:isr.:ix iirle rv;r I i] r{i1.|r tl +tii iili}t(iij pt;;l lalior:.
SOrlf {jf

r i}rj!! litji!}dni{r l.riflt{+r HSt:il1eiE1i iJtlstij oil

f'1ari:fi l:1.ri:)lli+rlldfrtii l{,r ih{:,{l;Lrrf+nl

fol{'il.n#d+ l{.}i

!.

llilFrji;ti*n llrrvtv.

iili,jirir:lttl
liri:*l

PEW RESEARCH CENTER

There were an estimated alo,ooo unauthorized immigrants living in Virginia in zo1o, a decline from 3a5,ooo in 2oo7. In Colorado, an estimated rSo,ooo unauthorized immigrants lived in the state in eoto, compared with e4o,ooo in zoo7.

In the Mountain West, the combined unauthorized immigrant population of Arizona, Nevada and Utah declined to an estimated Too,ooo from an estimated 85o,ooo in zoo7.

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Case 5:11-cv-02484-SLB Document 110-1 Filed 08/15/11 Page 17 of 33 Case: 11-14532 Date (69 of 10/11/2011 Page: 18 of 79 Filed: 130)

l.jrt;:uthrtrlr+l* 1m!ili(Jifrrli F*pulntion; r',iilfi#fiilf ;:nrl StatEr Trendtl, ?i):lil

Counter to the national trend, the combined unauthorized immigrant population grew in some West South Central states. In soo7, Louisiana, Oklahoma and Texas had a combined r.55 million unauthorized immigrants living within their borders. In 2o1o, that number had grown to r.B million. Texas, with an unauthorized immigrant population of r.65 million, ranks second only to California in the size of this group.

California has by far the largest unauthorizedimmigrant population (z.SS million). It also is among the states where unauthorized immigrants constitute the largest shares of the overall populations. In addition to California (6.8%), other top states are Nevada (Z.s%) and
Texas (6.2%).

Ymtu$w S States w$$tr$

fumrsest Share of {"$mmuthorized Kmrmigrants in t$"nw

Fwpulation/

Affi&ffi
(tho$and:s)

Total

Unauthorized
Share
7.2o/o
6,Bo/o

u;$iTt Nffiffiillll lrr

Unauthorized immigrants are concentrated in a relatively small number of states. The dozen states with the largest unauthorized numbers acconnt for more than three-quarters (ZZilA) of this population. Nearly a quarter (zS%) lives in California. Nonetheless. unauthorized immigrants live in every state, and several of their top destinations, including Georgia and North Carolina, housed relatively few unauthorized immigrants two decades ago.
Mexicans account for half or more of the unauthorized population in all but zp states and Washington, D.C. In seven states, theymake up 8o% or more of the unauthorized immigrant population. At the national level, SBTo of unauthorized immigrants are Mexicans.

Population Fopiltittifln

,rrflr tlbllli rffifi#--#,b

190 2,550 1,650 550 400

Nevad# California Texas N*w lersey Arif,fina Metryl*nd

Di$t!'!{l of {-olurrrhiir

2,655 37,2L 74,85 8,743

6,559 5,702
600 18,49

6.7o/o 6,2o/o
6,Oo/o

275

4,60/o 4.5o/o 4.5o/o 4.4o/o 4,30/o 4.3o/o 4.1o/o

finrid;r Georgia New Mexics Oregon Iltinois

25 825
425
85
160

9,722
1,997

3,854
12,84

52s

{:r)i1l|}*l:ftil ifi}irr !iilfoUFdeil ri+ta. 1r: ;in o,tr;icr v{::ri;jtil o'; !;a*lr:. " iiifi tr';rt fi i il# iu rn hifl " wiir s ift{:orr+{tli/ iii :-"rl+{i "\td..;h tt:iltfi;]. "

i!ili,J; ij:li1iitl'r0flztd 'it$tiiltittti-i ittti ril!Jl1tj{jd. l"4rri:tlrltaueii iJrrj

Ifiil

Pelrt liisliilrtit {l;*riief t:ritilrlaier f.rasetl cl: rirui}ttl(ii1ir}{i f'l*rrir ?CJ.il $ufrplflrflrir:ii i{} tirB {.urrefii filpi"ili;liiot; Su:'vt\j $+t 14rlhotjiliogv.

tiiltilcfi:

PEW RESEARCH CENTER

Among the five state$ with the largest unauthorized populations, Mexicans constitute less than half the stock in three of them-NewYork, New Jersey and Florida.
Because of small sample size in many states and potentially large sampling variability, some

state estimates presented here are based on multiyear averages. For the 84 states with fewer than 5o cases of rurauthorized immigrant households in the eoro sample survey, the estimates

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Case 5:11-cv-02484-SLB Document 110-1 Filed 08/15/11 Page 18 of 33 Case: 11-14532 Date (70 of 10/11/2011 Page: 19 of 79 Filed: 130)

peu;

uisnllii; i.*n*+.

for that year are an average of zoog and zoro. These states are Alabama, Alaska, Arkansas, Delaware, Hawaii,Idaho,Indiana,Iowa, Kansas, Kentuclqy, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Mexico, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Vermont, West Virginia, Wisconsin and Wyoming. Estimates for other states and for the District of Columbia are based solely on eoro data.

All zooz state estimates were derived by calculating the average share of the national unauthorized immigrant population for eoo6-aoo8 that was held by each state, then applytng that share to the zooz national total.

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Case 5:11-cv-02484-SLB Document 110-1 Filed 08/15/11 Page 19 of 33 Case: 11-14532 Date (71 of 10/11/2011 Page: 20 of 79 Filed: 130)

t7
l.i

ni l u th o r i ;;{,r# I *r tn

i r::!

r;*

nt

P$ i} il

iiti fi i]

Jtl+li**+J

an* Sitfitri Tfeild$, i+1fl

\Morkmrs
There were B million unauthorized immigrants in the worldorce in March zoto, down slightly from eoo7, when there were 8.4 million. They represent 5.2% of the worldorce, similar to their propottion for the past half-decade, when they represented 5% to 5.5% of workers.
State patterns differ widely, but generally states with large numbers or shares of unauthorized immigrants also have relatively

Table

{,$mmu**hmm"ffmed

Immigramts
(million^s)

*rx {,$.S.

Civilian $-ahmr Fffince,

AOOO-?S$.S
Share of Labor Force
i,.r,frirlri

large numbers or shares in the worldorce.

States with the largest share of unauthorized

immigrants in the worldorce include Nevada (ro%), California (9.7o/o),Texas (g%) and New Jersey (8.6%). Because unauthorized immigrants are more likelythan the overall population to be of working age, their share in a state's worldorce is substantially higher than their share of a state's population.

Year fr,ill llffiffiift ?*Jfl ?f.]t!g 2008 ?t]*7 ?rl#* 2t]*s 2004 2003 2002 2001 ;0fis

Estimated Labor
Force 8.0
7.8
B,?

,i:,

':

lllffiffiL
5-Zn/o

8.4 7.8 7.4 6.8 6.5

5,1olo 5,3olo 5.5olo 5.2o/o

5,Qo/o

6.4
6.3

4,60/o 4.40/o 4,40/o 4,30/o

3, B0/o

s.s

[i{]l:ft; Ifla lrjtlilii ijrrtillilvfi{1 dnd ilneirpioyeli;i $i:iri{f r:i. S+tjf{dr: [.]etn ft:Sil]fifiirj {;1'jtl.{jr eliiiirrli;iorr Lra$oLl oii aLtiJrtrefittd lularch SiJ.pr)!i;i:'il+rriri tt) lhii {:lilrf#rlt Frdriillatioil !irrrvev, S+ti
lvrl.iihr)(iol0!ly. PEW RESEARCH CENTER

California also has the largest number of people in the labor force who are unauthorized immigrants (r.8S million), followedbyTexas (r.r million), Florida (6oo,ooo) and NewYork (4so,ooo.).

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Case 5:11-cv-02484-SLB Document 110-1 Filed 08/15/11 Page 20 of 33 Case: 11-14532 Date (72 of 10/11/2011 Page: 21 of 79 Filed: 130)

1E

Prilui i llsilarrir: Centt-'r

References
Bean. Frank D., R. Corona, R. Tuirfn, and K. Woodrow-Lafield. 1998. "The Quantification of Migration Between Mexico and the United States," pp. 1-90 in Migration Between Mexico and the United States, Binational Study, Vol. l. Mexico Cify and Washington, DC: Mexican Ministry of Foreign Affairs and U.S. Commission on Immigration Reform. Capps, Randolph, Leighton Ku, Michael Fix et al. 2002. How Are Immigrants Faring After Welfare ReformT Preliminary Evidence.from Los Angeles and New York City. Final Report. Washington, DC: Urban

Institute, March.

h ilT:

:,.'

rrvrv t\'. lJibail fi rF1rrl

.

{" f

rn? t D*-4 1 042 6

Hoefer, Michael. Nancy Rytina, and Bryan C. Baker. 2010. Estimates oJ the (Jnauthorized Immigrant Population Residing in the United States: January 2009. Washington, DC: U.S. Deparnnent of Homeland Security, Office of Immigration Statistics, January. hrtp:1i$r.r..$'.clhs"s{ir'lxlibrar}'.n*s*tsi$trfltisticsi't}ublicatiorrsr'ili.l*ill. x}{r Jfi{}

I.rrtlll
Marcelli, Enrico A. and Paul M. Ong. 2002. "2000 Census Coverage of Foreign-Born Mexicans in l,os Angeles County: Implications for Demographic Analysis." Paperpresented at the 2002 annual meeting of the Population Association of America, Atlanta, GA, May.
Passel, Jeffrey S. 2007. Unauthorized Migrants in the United States: Estimates, Methods, and Characteristics. OECD Social, Employment and Migration Working Papers No. 57. Paris: OECD Working Party on Migration, September.
h

ttp : i,ri.v urw. o ecd. org/d Etta$ ff #t{ r'4 I /2

-5

13 112{i4 fi ? 1,

Fd

1'

Passel, Jeffrey S. 2007a. Growing Share of Immigrants Choosing

Naturalization. Washington, DC: Pew Hispanic Center, March. httn:lfieu,h i sir** j,.Uttl[{lfi lE$lt e
Passel, Jeffrey S. and Rebecca

L. Clark. 1998.Immigrants in New York: Their Legal Status, Incomes and Taxes. Washington, DC: Urban Institute, April. http:,/,'r.r'rE r,r.'. mr'h**.*nqhrrl-pilg]ll)=4ili4i

Passel, Jeffrey S. and D'Vera Cohn. 2010. U.S. Unauthorized Immigration Flows Are Down Sharply Since Mid-Decade. Washington, DC: Pew Hispanic Center, September. hitn.,!lrqwdn,!f**jq'lE#r:j.ji*t,:reL_oE$4?$,!di'

nwrv. pewhispanic.org

Case 5:11-cv-02484-SLB Document 110-1 Filed 08/15/11 Page 21 of 33 Case: 11-14532 Date (73 of 10/11/2011 Page: 22 of 79 Filed: 130)

19

l.Jfl#rjth{}riH*d lnrnritlr+lr:t ['+pul;:tion; hiqlti*fli]l *]ftdf

Sirll* Trenils,

7-Q.1.{l

Passel, .Ieffrey S. and D'Vera Cohn. 2009. A Portrait of'Unauthorized Immigrants in the United States. Washington, DC: Pew Hispanic Center,

April

ltl!p.,lhewhi''{}'rn

{;..al

Passel, Jeffrey S. and D'Vera Cohn. 2009a. Mexican Immigrants: How Many Come? Hov'Many Leave? Washington, DC; Pew Hispanic Center, July. irttui'lnewhn$]iqilq, orulilq$lrqpqr|s,:JjJ'pdj Passel, Jeffrey S. and I)'Vera Cohn. 2008. Trends in Unauthorized Immigration: Undocumented Inflow Now Trails Legal Inflow. Washington,

DC: Pew Hispanic Center, October. http :;'1fi *rvhi spalic.*rgr'li I *slrrwr.rrts/94.,pd{
Passel, Jeffrey S. and Paul Taylor. 2010. Unauthorized Immigrants and Their U.S.-Born Children. Washington, DC: Pew Hispanic Center, August.
hl

tp

t pewhi

s$a ni il.

*r:#' li l esi'rc,port s/ l

3 5.

pd

l^

Passel, Jeffrey S., Jennifer Van Hook, and Frank D. Bean. 2004. Estimates

of Legal and Unauthorized Foreign-born Population.for the United States and Selected States, Based on Census 2000. Report to the Census Bureau. Washington, DC: Urban Institute, June.
Pew Hispanic Center. 2006. Estimates of the Unauthorized Migrant Popultttionfor States hased on the March 2005 CPS,Immigration Factsheet. Washington, DC: Pew Hispanic Center, April. h*ffi,'rparruhispaul*'# Pew Research Center for the People & the Press. 2010. Ohama's Ratings Little AfJbcted by Recent Turmoil. Washington, DC: Pew Research Center for the People & the Press, June. hilp*;peoplt:
rrr* s +.rt f $y repllUllp4sqr

{hl

?4 {t

U.S. Census Bureau. 2010. "Estimating ASEC Variances with Replicate Weights." Washington, DC: U.S. Census Bureau.

hXlp!4tttltiriif .dsd.ccnsus.ir{}v;iffut}it'ul;"il:uitl:q.lli Usg oLthe Public [-]se ,l{. epl i*nr.* H*i r+hl-Eile,,,,jinal-Hfi*fiS-Liklcr linked from
hgru-www.bI$.##r1 U.S. Department of Homeland Security. 2010. 2009 Yearhook of Immigration Statistics. Tables 6 and 36, especially. WashinSon, DC: Office of Immigration Statistics, Department of homeland Security.

[rtlpzriiu$'.rlh$,s{iv lllEsi5ldH.tUalrpuWsqtt$

[]t"rn

www,

pf,

wfliSilail

iil..

{Jrcj

Case 5:11-cv-02484-SLB Document 110-1 Filed 08/15/11 Page 22 of 33 Case: 11-14532 Date (74 of 10/11/2011 Page: 23 of 79 Filed: 130)

20

Ftlw llisperrri f+rtl.*r

WarTen, Robert. 2003. Estimates of the Unauthorized Immigrant Population Residing in the United States: 1990 to 2000. Washington, DC.: U.S.

Immigration and Naturalization Service, Office of Policy and Planning,

January.

ngs-#*:.1|H,'\v-{1
.tffH'

ffL-iil*BEn()ft

l?f

w ww.

pelwhispa il it:.0ftj

Case 5:11-cv-02484-SLB Document 110-1 Filed 08/15/11 Page 23 of 33 Case: 11-14532 Date (75 of 10/11/2011 Page: 24 of 79 Filed: 130)

21 LJfr&ut!'loriz{id Iirt$li61f;}ntr

fopulntion; Niili#ilftl ftfi{i Stat# Trettd:;,

?01.0

Appmndix A; Additional FigL$.re$ and Tables

Ymh$w

&* S{mffims witl'l

fi-mngwwfi

Share of

{.$ffimuJthorized Hmqwr*gnants irn trfqw

fl-abor Fffifltrffiu 4ffi1$

(thousands)
Total Labor Force Unauthorized

uls:fidHffiffilll
l',ievfl{i+

I ffii

lum,*,Cnil
1,367 18,811

lxllffir llilffi
140 1,850 1,100 400
/-5U

E$timate

Share

Califtrrtii*
Texas
f\lew -Jersey

r2,26I
4,679
3,116 4,777 9,064 3,100
339

10.0o/o 9.7o/o 9.00/o 8,60lo 7.4o/o

7.Qo/o

Arizona Georqiir

Florid*
h{ary1frr'rd

325 600 190

20

6,60/o 6,2o/o

Distfict of
Colurnbia

Y'mhf;e
6,Lo/o 5,6d/o 5.60/o

AZ

Iilinois
f;eud Mexico
{',}urth Carolina

6,7L9 909 4,658

375
50

?50

5.4o/t

States with Largest f{r.r*ffih#r &f $-Jnauthorized Imm*grarnts $rt the $*mhor Force, ?OXO
(thowands)

liilt {i i 1..+ h+r i{lf tt eiiltilTia t+-,t :fi itti Llrr: Ijilt J;r:il,y'ei:i 3 t }# uilemFitiyfrrii urdrkt:rfi;. i.Jfiailihflf i;iFd el'tinlattl$ Ard r(]t.lttlt{i. td f t itti iil t]{-.5 a r'{j (:il rT! tjl fi 1{:i{l l|{} rri r rl i{i r; rl iJtii fl atd .
r

Total
u.s.

Unauthorized

5;oLirce; ii,+vr fiil.ii:)finir {-l{rrl:flr e$tinr.rtelii l:lirsr,lrl rrr;lrrqrn+11ie{1 Hiifrh til 1{1 fiup;}ifrftrtlrtt r:* liifl i-trrrrni. Prpul,'il.i+n liitrv+y.

liri{j t"lrthfi {iil

lil g},,

itiiiiiii

Labor Force

Popr_rlation

ffiffiffiffit#ffiHfil
1,850 1,100 600 450 400

Share

lLl

iriffi
9.7o/o 9.0o/o 6,60/o 4,70/o 8,60/o 5,60/o
7,Oo/o

PEW R.ESEARCI-I CENTER

California 18,811 Texas L2,26t Fl*rid* 9,064 ftfw Y#rk 9,742 Fteur ..|*r$ey 4,679 Illin*is 6,719 fie$f$Jifi 4,777 **r*lin* ,Arizona l.{aryland
Vif

375
325 250 230 190 190
IOU iil|itii:iri Ft:npioVtlci rrnd
r il f r l{}ir f dt:lti
r

ru$rtfl

4,658 3,116 3,100 3,623 4,082

illtrtl

5,4o/o 7.4o/o 6.2o/o 5,1olo 3,9o/o

SJ*shinqton

frirrl+
ii

ilsitlI
f

1...i1.1+f ififtfl tillfttitfri$ $fttrililltlytti Hilrkt'jri. i.Jfldilli!dlri?frJ e5iir|ili;(1!i artl r0u{rdtld. rri
r l.:r1i f r !;i* lJ

ri

;r ri:+ i::$ nl

il

: () r'f

iri:lJ.

l.jilr,r{rii: i:t1r.,iiisit}irflir:: iotltclr r!:tirTldtcg L\a$tii of, J!.lt[1r:trrttril N1af{lr 7t}10 "'}{.lpr-.lijrntrit{. ltil t44: i;rrrr*l?. t'i}llr.riit.ilLr l:;ilruii:r. Ii#{i U+lii{}{iill{l{Jy.
PEW RESEARCH CENTER

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Case 5:11-cv-02484-SLB Document 110-1 Filed 08/15/11 Page 24 of 33 Case: 11-14532 Date (76 of 10/11/2011 Page: 25 of 79 Filed: 130)

zz
Ffrul i.Ji$i],aJlit f,eftt{}t

F$gtlxre

AI
fiwuxrxrtny

Wflrents'
fiftfr $dx-ms*

of Birttr fms-

Unawt&tssrfrmed ff*ttmmfrErantsu ftffiS"ffi

sf

N()t+fir lfii:lrid{ii; [i;tfi:lfiiE t]{'LJ.S.-bilrn 0lrd i{}lnliqrdf}t chi[dttrt ilricicr 1{i y+i* 5 i}lii. l}{r1l$iiaqei; nla'l l}i}l a{idl ll;i .1.1.}+i'i, hecails+ r)f r{}ur:diflft .

ijjilur{f I '{rw Hisi,"iJfriil i:riilirr r}$lirlatqii baEdcJ #li autJrntfli.+tl f"lardlr ,:ltipl)iflrneflts 1.o lh{i i-lilrrfifit Pt}filliltiij* $ufveY, $fl'e
f

Met:1{]d#tiii{J!

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$*iignxe'e
H-m&*e*s-

Afr

H.$s*me$&trt$r$sed

Immigrants it* &he

(mfllionsJ

L$-S. #fiqr*{$msr

ffi$rfre, ?OOO-20I"O
8,4

10.0 8.2 8.0

0.0

2000 2001 2002 2003 2004 200s 2006 2007 ?008 2009 2010
J',ltite

i it cl

uiie5

ntpioyei.r

a fi

iI

ili'n ! FlilyrirJ r.rilr krirt;.

i"1+th(}i:lt)ir-i{)y.

Iiililri;+; llew Fliip.tflit; ldlnter tsttrtrittfl$ i)a$dd $tr;jfifiiylclf;ii*{l iqi}t$t lifip*lti|tiltii iij til+
{:ilrrt'"'ilt l'{rl}ljj;:}ti*fr !-ir:rvr::v,
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Case 5:11-cv-02484-SLB Document 110-1 Filed 08/15/11 Page 25 of 33 Case: 11-14532 Date (77 of 10/11/2011 Page: 26 of 79 Filed: 130)

23

t.tnilrithoilzerj Iilltt'rifJr*r{lt Poiltrlat.iorr; I{irli#rt*i

i+11{i

St:ate Trerrds,

2{J.1.ll

Table AS * Hstimates CIf Unauthorfiffid Immigrant Fopulation by Stater Selected Vears 199ffi tax 2O1O
(thousands)

2010

20,07
frfitimated

?oo5
Ra

2000
[:stir]1iJti]rl
Popil latior'r

1990
Fstimate.J FloilrJli]l!iln

ffi$rntal i' Alabama

Ala$ka Arizona i:-nlifornia Coloratlo Connecticut
Distrirt oi

Lstiflli]fed Rnfigr PoDtrlntr#rt

iliaoo'

120 <10 400 2,550 180 120

irl#$

t]ftfllilf liqll

rr!]r

ftstimatecl

ill)pillatiorl
<10 450 4q 2,650
2.40 6f,
.

- 160) <10 (275 - 500) (2,350 - 2,750) (r40 - 230) (90 - 150)
(75 (20 (725 (300

0";

ncfrtd$
<10 500

1r0

ffil###rti'il*soo *.. {+q.;

- 160) <10 (400 - s7s)

(55
70)

' ilillilr#fiil rlffiiffi##il,F, ii i'; ,

60

25 <10 300
IOU

. i;Cili#,S
<5 90 1,500
70
5 15 5 q

2,750 24o

rr0
30

(2,600 - 2,900) (210 - 275) (90 - 140) (2s * 3s) (950 - 1,150) (4oo - 575)
,""(?"s,*;""10)
""""...

2,300

"'

F0

/)
r5_...

Coiumhi+r 25 825 Florida 4?5 Georgir: ldaho Illindi$ Indiafta

Keiltucky Lou i5i*r n il
MainL,'
,

- 35)

-.

25,.

tt
925 425

- 950)

- 550)

r,050
475
35

1J JIJ

35 52s 110

(20 - 45) (425 - 6?5) (70 - 160)

s00
100

Marylarld Massachusdtts Mirhlgan

Mllljlgsot_a.

Mississippi

Missouri Moiltana
N,eHfaska

Nevada

Nflw Hampshirt
New Jer5ey
Nsy*"14F.xitP.

Nrw York
North Carolinfr North bakota
olilP.

80 (40 - 120) (3s - eo) 65 . <1q, . "*"_*lp***. 275 (200 - 325) 160 (120 - 2oo) 1so (r10 - r90) ._"8s_."__*(60 - 1qp) (20 - 70) 4s (3s - 7s) 55 <10 <10 .*4"5' . , (2s;60).." leo (r50 - ?30) (10 - 20) 15 sso (42s - 6so) , * 8s..,__"....,".. (60 I _110) t4)) b{5 l)L)325 (240 - 4?5) <10 <10
*.1q0

5s

(4s - 8s)

Oklahorna Oregon
Pdd nsy lva n ia

160 160
ss <10 140

. (61 - l4o) ?E "". /EE . OE\ (110 - zzo)

Rhocir: Islan*ql*__ South CHf0lin6

30
...

(1r0 - 2r0) (?.5 ; rs).**

75) <10 (9s - 180)

(30

56uth Dakota
Tennessee

.Iq{n.s.
Utalt

...

1,610

Veinldnt
Vifginia Wir"s!liLlfltoll . West Vir$iilia Wisconsifi
!Vyonr
in

(70 - lso) rr0 <10 <10 (170 - 250) 210 23p _ <10 ".(140_-3?s)_.... <10 (65 - 140) 100 r10 <10

(i,4s"0; ir850)

(30 - 60) 45 (20 - ss) 35 +lq '"* (220 - 300) "--5r9"'* 27s r90 (140 * 230) 120 (85 - r40) 1_1.*q"_.. _(8s - 140) (20 - 60) 40 (25 - 6s) 45 <10 <10 ,.*5_q.,,,. (3s - 60) 740 (200 - 275) (10 - 25) 20 600 (5?5 - 675) ..90***, "(p0 - 100).. 825 (725 - 9?5) 37s (300 - 4s0) <10 <10 (70 ; lJo) *J"0-0* .. (40 - 70) ss 140 (100 - 180) 140 (eo - r80) (2s -..3-5) 30 (4s - e5) 70 <10 <10 160 (110 - 210) 1,410 -(.1,3I"9 ; .,rlFqO) 120 (90 - 1s0) <10 <10 32s (250 - 375) L7q (1?,Q; ?lQ.) <10 <10 (65 - 120) 90 <10 <10

70

(2s-40) " *" ._et" (2s - 40) JU (425 - 5s0) 350 (80 - 130) 85 (40 - 7s) * "" - f,f,
(ss - 90)
E-ii"

250
25 25

240 J5

5.
10

475
of

200
10

/)
55 20

.F.
l5
r5
*.._ J s ?q Jf, L) 15
f

50

t5

20

.
_.

<-10

250 200
120
"._8_q*

".slq
120

".
.

1s0 95

40 40 <10
190
IJ

_ _"_ .. rt.. .
t0
30

10

<10
,.*...

<5

"

39 140

5.
tl
<5
95

<10

475
OJ

675 375 <10

r0Q 60

*"*in*""
2r0
<10 "_"..*"__"t:..."
50
..""

J1) fJ

20 350
4D

<5

-"

.".. lq
15

r40
150 30
)f

r10
85

25
LJ

".

20

tp"
5

<10
130

45 <10
fU

<5
10

1f400
95

1,100
ci5

.. 4I0
15

<10 275 29p <10

100

<10
150 160

<5
50
" ".."..4"q*

<10
5U

<5 <5

10

<10

<10

lv$irli t ll;'ifi{,,

li}}'.l4'Jt'nt|ij;i;tl]ij[ll!.\irit|:|#rl+i}|i}i1l1i.]dt'1fiV0i]iii.iJl1lll1t.

F'+ii..ir:rl

f;i: ;ri.

?iiiir,

i::iitiiiiriJlj{'i1

kjr

l.{,}+ii

iffiflr iVilrf,iirr iliii'lii. li*lr flrrilrildali}i}/.

PEW RESEARCH CENTER

www. pewnrspanrc"or[j

Case 5:11-cv-02484-SLB Document 110-1 Filed 08/15/11 Page 26 of 33 Case: 11-14532 Date (78 of 10/11/2011 Page: 27 of 79 Filed: 130)

24

[]ew i"Ji$ilfrtrlt: i,t:nter

Table &4,- Numben mnd Share for Labor Force and Tota$ Popn*$m&ion of [Jmmwthorized ffmrnigrants, fon States' 2@I"S
(thoumnds)

Labor Eotee

Ponulation
L
J

Total

Unauth$fir**

iliJritir$rizerJ Shere
i+.12,9b 2.5o/o 1Lo/o 6.0olo
1,81/-g

lrtr$,t Alaba nlir

AlasKa

Estlmate

lffinliqr?*iltii
Share
4,70/o
< 1.5olo

Total ffi.E,esci
4.695 690
?,"89531

lrilrttqrant:l

ll'.Hjl

l#Hffi,ffiff..,

2,263
358 3,116

tll

liffilood.lliffil
es <10 230 ,*0
120 85 20 20

itiidrz0
<10 400

Esti'||ate
firlrll

i\nzon

Ajqir.l:l"sas

Calilbrrtia Colorirdo Cflnnectlcut

Llelawa re

11305 18,811 2,664 1,853 434

..

7.4o/o

r,850

l,9olo
I.7o/o
4.64/o 4.54/o 4.54/o 6,10lo 6.6o/o

4 044
3,497
._qs"3

,ZLl

"...

sl

?,550
180 120 25
1A

6.8o/o J. O -/o 3,40/o

3r 0:/-o.

DistricL of flolumbia
F!#flida

JJY

9,064

600
5/)

fit'or.qia l{awaii Idaho I llinois

India na

4,777

612

30

7.0o/o +,6oto
2.8o/o l. o-/o 2.3o/o 3.Zn/o 3,3olo Lo-to

i i

600 18,492 9,722

I aq?

4.50k
4.54/o 4.4o/o 3.Lo/q 2,20/o

825 425 40
35

764 A'r1A
3,168 L,4L7
2,08
1

375

70
f,f

l2,a4L
,,,,""

L,atY

5?5
110

Io*,4

Ka nsas

""**",

45
40
<10

6,382 *?r?9.F

4.lo/o 1.8%

f5

Kentucky
Lou isia na

2,068
67F..""

r"'lg!lq"

Maryland
Md ssachu

setts
..

Michioan
M"ifi.ngfgtg. Missi$$ippi

3,509 130 4,885 100 ._],P_!L__,,.. 60

t,223
fIJ

3,100

r90

-"

Z.Oa/o < 1olo

6.iqT
3.7vo
7-Oo/o
i
I

.
,"

2,750 4,276 4,462 5,707

6,658

h5 65

-: _" ,,1H"1: 2'4o/o

1.8o/o L.4o/o ....."1.0,50/9

80

l,30l

*._alq*
ttJ
160 150 8F

4.64/o 2.4o/o

z.rvo
7 9a/o
1.30/o

I,873
5r228

l.5olo

i
I

Missouri Montana

3,057

35 40

2,877
tr on?

45
Jf,

-*

L,60/o

1.5-t;
0.9olo

<10

<7"/o;
10.0o/o
i
I

Nevada New lampshir* New lersdy

f

1,367 754 4,679 9,742 4,658 375 1,798 ?,Q24 6,264 443 3,020 111291*
1 ?qo 360 4,082

140 10 400 450 250 <10

l.6qlo 8,6qo

975 1,7F8 2,655 1,316

1 do7 79,474 9,387 634 11,493 3,646 3,8s4

<10 45
190
15 f,f,u

<0,50/o

"' 2.4o/o )lw

L,7"/o
6.2o/o

4,743

York North Cdroliila North Dakota

New

4,7%
5.4Yo

.Fs
o45

+.1.'h
3'2o/"
3,50/o
< 0.5
0/o

|
I

<0.5ol.

325 <10
..""1.09.*

Oklahonra 0regon Penn$ylvania Dakota 'feilrlessee Texas

SoLrth Llt+ft

$5 - 3:0t;-i ffO 5,3olo] f f0 L,7o/o i <10 95 |f 100

7\
<10
160
l.e"g

75 160

"*"..

o'91/q 2,00/o 4,30/o

1,30/o

t2,439
1,034 4,514 802

lou
30
Jf,

<1.5olo 3.1olo 5,4o/o

l i

<10
140

*" 3,00/o l.i'h

<!o/o
2.7o/o

6,262
.-2a",,8tF

s,-O.-"/f i
t

1/650
110

6..70k
<

2,4L2
618 7,808

vf:rmont
Virgin ia
*..*Washirlgtor1,..

<0.5olo
3.94/o

i
I

<10 210
13"0"

3,8o/o 0.5olo 7.74/o

West Virqiflia
Wiscon$ift WyOrninc

_3,F?3,

. 769 ? nq?
292

S.Lo/o i

<10

65 <10

<0.5olo i

...

. .6.7-4.8.

?,0%

i
!

1,806 5,600

<10
100

<0.5olo

.l.,!ilt

<1.5olo

J+t

<10

1,80/o < 1.5olo

{i}fi

N$t+'ii.'.1t]{..|ftrr{:(t8s'i;int.i;i:t$i1'l{:lidtjhfl]|1ft'npl0yeii']ttJlJ|1tin]j+y{:l{j l}L' lrii f ri)rr I t, rl f i}rr ll tl+il {ld ti1.

)

1jf|!ri;1'1!;:pi}l!l.iii|}fl1i{{-fftt|':j,{'rtilIijtesh,lijeci+|r|+j:irdi'J/ji!l1+|'ii{i*i-1i+t]1';Jl]pliedt(rl11|{;i1 liilFpldnrdrrtii t+ tjl* r-irrrtlill li'riiril,rtioil liL:rvdy. ll{i{r Ht}ti}+ii*i*Sy.

PEW RESEARCH CENTER

wwrr. pswhispanic.org

Case 5:11-cv-02484-SLB Document 110-1 Filed 08/15/11 Page 27 of 33 Case: 11-14532 Date (79 of 10/11/2011 Page: 28 of 79 Filed: 130)

25

{.jnaillh+rrzed 1il}fiiqrirnt l}iliiilliJfi#il: {!iii;lfinai dnrj rTidtr.l IrenrJr, ?f .1*

Appendix B: MethodoloEr
&J

mawtf'to

nfr

sed

$rwmi g rants

-ffiwenwlew

The data presented in this report on unauthorized and legal immigrants were developedwith essentially the same methods used for previous reports (Passei and Cohn 2o1o, 2oo9, zoo8). The state-level estimates for uoro and eooT are based on a variant of previous methods (e.9., Passel and Cohn zoto, Pew Hispanic Center zoo6). The national and state estimates use a multistage estimation process, principally using March Supplements to the Current Population Survey (CPS). The CPS is a monthly swr/ey of about 55,ooo households conductedbythe Census Bureau for the U.S. Bureau of Labor Statistics; the sample is expanded to about 8o,ooo households for the March supplement. The first stage in the estimation process uses CP$ data as a ba^sis for estimating the number of legal and unauthorized immigrants included in the survy and the total number in the country r:sing a residual estimation methodology. This method compares an estimate of the number of immigrants residing legally in the country with the total number in the CPS; the difference is
assumed to be the number of unauthorized immigrants in the CPS. The legal resident

immigrant population is estimated by applying demographic methods to counts of legal admissions covering the period from r98o to the present, which are obtained from the Department of Homeland Security's Office of Immigration Statistics and its predecessor at the Immigration and Naturalization Service. The initial estimates here are calculated separately for age-gender groups in six states (California, Texas, Florida, NewYork, Illinois and New Jersey) and thebalance of the country; within these areas, the estimates are further subdivided into immigrant populations from 35 countries or groups of countries by period of arrival in the United States. Variants of the residual method have been widely used and are generally accepted as the best current estimates. For more details, see Passel and Cohn eoro, eooS; and Passel zoo7.
Then, having estimated the number of legal and unauthorized immigrants in the March CPS Supplements, we assign individual foreign-born respondents in the survey a specific status (one option being unauthorized immigrant) based on the individual's demographic, social, economic, geographic and family characteristics. The data and methods for the overall process were developed initially at the Urban Institute by Passel and Clark (especially rggS) and were extended by work of Passel, Van Hook and Bean (zoo4) and by subsequent work at the Per,v

Hispanic Center.

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Case 5:11-cv-02484-SLB Document 110-1 Filed 08/15/11 Page 28 of 33 Case: 11-14532 Date (80 of 10/11/2011 Page: 29 of 79 Filed: 130)

p** utrolL;,,

*r,nt*t'.

The final step adjusts the estimates of legal and unauthorized immigrants cor:nted in the surve,y for omissions. The basic information on coverage is drawn principally from

comparisons with Mexican data, U.S. mortality data and specialized surveys conducted at the time of the pooo ftnsus (Bean et al. rgg8; Capps et al. eooe; Marcelli and Ong 2oo2). These adjustments increase the estimate of the legal foreign-born population, generally by r-3% and the unauthorized immigrant population by ro*r5%. The individual suweyweights are adjusted to account for immigrants missing from the survey. These augmented files serve as a basis for the detailed tabulations of the family, social, economic and geographic characteristics presented here and in previous reports. AII estimates shown for aooo-zoog are identical to those in Passel and Cohn soro and Passel and Taylor zoro. The estimates for eooo-eoo8 use specially dweloped surveyweights forthe CPS to ensure consistency across the years in the underlying population figures. (See Passel and Cohn poro for a detailed discussion of the need for these weights and about their development.)
ffitmtm*fi ewe$
ffi mft E mrsmft

es

State-level estimates should be treated with some caution because they are based on much smaller samples than the national estimates. Estimates from single years can be extremely volatile, so measurement of trend*q over time can be unreliable. To provide interpretable trends, previous estimates have relied on mrrltiyear averates and regression methods (Passel and Cohn po1o, 2oog; Pew Hispanic Center zoo6). The estimates presented here for states in poro are based on tabulations of the augmented March aolo CPS file where the sample sizes exceed 5o unauthorized immigrant households (unweighted). There are t6 states and the District of Columbia where the single-year estimates
are rrsed for eoro: Arizona, California, Colorado, Connecticut, District of Columbia, Florida,

Georgia,Illinois, Maryland, Nwada, NewJersey, NewYork, North Carolina, Oregon, Texas, Virginia and Washington. These states had more than 8r% of the nation's estimated unauthorized immigrants in soto. For the 84 states with fewer than 5o unauthorized immigrant househoJds, the estimates shown for eoro are an average of zoog and uoro CPSbased estimates. These states are Alabama, Alaska, Arkansas, Delaware, Hawaii, Idaho, Indiana, Iowa, Kansas, Kentuclgr, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Mexico, North Dakota, Ohio, OHahoma, Pennsylvania, Rtrode Island, South Carolina, South Dakota, Tennessee, Utah, Vermont, West Virginia, Wisconsin andWyoming. For these same states, the worldorce estimates in zoro also are based on zoog-go1o averages. The total number of unauthorized

www,Ffrwhi$ps,r jc.0rg

Case 5:11-cv-02484-SLB Document 110-1 Filed 08/15/11 Page 29 of 33 Case: 11-14532 Date (81 of 10/11/2011 Page: 30 of 79 Filed: 130)

27

i.Jnaliltflorlzed IffirT1i{tf;}nt ['*t:ulntiorr; l\dili#rlft1 *tul 5it;rit{r Trends, ?0.1i}

immigrants does not differ significantly for these two years and the distribution across states is more similar for eoog and zoro than fcrr any pair of years between aooo and zoro. The very high degree of similarity suggests that averaging to reduce sampling variability does not distort the trend analysis.
The state estimates for zooT are derived by averaging the distributions of unauthorized immigrants across states. These average percentages were then applied to the national total for
zooT of ra.o million unauthorized immigrants to derive the state estimates. The use of three years of data reduces substantially the margin of error of the resulting estimates. The

distributions across states are quite similar for these years. The dissimilarity index for the zoo6-zoo7 pair is smaller than all others except the aoog-zoro pair noted above. The index for eooT*zoo8 is the fifth smallest, behind zoog-solo, uoo6*zoo7, 2ooo-zoor and eooraooz. Margins of error for the state-level estimates are derived with replicate weights developed by the Census Bureau for the March Current Population Surveys of zoo5-zoro (U.S.
Census Bursau, zoro). ffimmmd*mE

ef

ffistEmmHmm

All stateJevel estimates for unauthorized immigrant populations are presented as rorrnded numbers to avoid the appearance of unwarranted precision in the estimates. No estimates smaller than ro,ooo are shown. Estimates in the range of ro,ooo-too,ooo are rounded to the nearest S,ooo; estimates in the range of too,ooo-p5o,ooo to the nearest lo,oool estimates smaller than r million to the nearest 25,ooo; and estimates larger than that to the nearest So,ooo. The same rorrnding conventions are applied to all state-level estimates of unauthorized immigrant populations and labor force for zooo and later and, more generally, to most of the data presented on unauthorized immigrants.

urww. pflr/Jhispanlc.ofg

Case 5:11-cv-02484-SLB Document 110-1 Filed 08/15/11 Page 30 of 33 Case: 11-14532 Date (82 of 10/11/2011 Page: 31 of 79 Filed: 130)

?8 Frlu;

i{ispanil {-enter

Appendix ff: Maps

Ftap ffi5"; Fopu$mtdmm by $ta&e

Unauthoriued Immigrant Fopulatisn

by $tate, ZG10

illilnfilr

lfl''o"111r,'

Dtstrffit ot Coluffibla

U,5. Totsl

11.2 million

l".65 mil{ion " 2.55 million - 825,000 140r0s0 - 325,000 55t000 - 120,000 <45,000
4SBr00S

www. pewnrsptsnrc,

or"E

\\'\;

Case 5:11-cv-02484-SLB Document 110-1 Filed 08/15/11 Page 31 of 33 Case: 11-14532 Date (83 of 10/11/2011 Page: 32 of 79 Filed: 130)

29
{..inar.rthoriz+cJ ln'}!"r}iqr*Jrtr FnDuiationr

l\fifisfi8;

aJ'}d Statrjir Trendg,,

1il1*

Map C2: Sharm sf State FoPu$mftion

Unauthorined Immigrant Share of Fopulation

by State, 3010

Dlstrict of
Columbi6

ffiffi
:ili:iii

iiil'
i#fi
U"S" Average

3.7qtu

'ril;

S
*flii1.

69o

7-"2V8

e.e+ro

* 4:6%

itisryft*3.6-$/b
1-6V+

il i:s+_; : i"i% <

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.5

Case 5:11-cv-02484-SLB Document 110-1 Filed 08/15/11 Page 32 of 33 Case: 11-14532 Date (84 of 10/11/2011 Page: 33 of 79 Filed: 130)

30

PeF Hi$pfr 11if, {:i}}lter

Map CS* Share Mexicaot

lilexisans as Share of Unauthorl ed Immigrants

hy State,
ZCIj"0

i'li':. :'i

'

Pistrict of
Columbia

U,5. AvdrFge
-,: ,,:

5Aq'b

'lrEHl;,

ffi ffi
Hil

Slo/o
60s.6 42#/o

95o/d 760/o

57Pk
3Bo/u

Z4Vs

< l8o/o

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\'tt

Case 5:11-cv-02484-SLB Document 110-1 Filed 08/15/11 Page 33 of 33 Case: 11-14532 Date (85 of 10/11/2011 Page: 34 of 79 Filed: 130)

31
lJ

nalf

hrJ

t'ired i fi]fl']

g rtl fi t. Ftoil ti lfr

llon fifrt.rnnal anij Si.ltt{i Tt'e*liii, 2fi1{i

$r$mp

ffi4* Fenawmt mf f-ahmr Fwn'ce

nauthsrined f mwrigra ffits as Share of Labor Fsrce

by $tate, 2010

Dt$trlct of Columbia

1l.$. Average 8.1'l/d

'' il ir
-gls

8.60/o

- 10.0%

ffir 6.1![o

'

7.4o/o

@
'ith

+.iol" - s.g'r*
Zah'3.9o/o

<

L.7E/tt

www. pewhispantc. firfj

Case: 11-14532

Date (86 of 10/11/2011 Filed: 130)

Page: 35 of 79

Exhibit B
to State Defendants Opposition to the Appellants Motions for Injunction Pending Appeal, October 11, 2011

Case 5:11-cv-02484-SLB Date (87 of 10/11/2011 08/15/11 of 79 1 of 4 Case: 11-14532 Document 130) Filed: 110-2 Filed Page: 36 Page

FILED
2011 Aug-15 PM 11:51 U.S. DISTRICT COURT N.D. OF ALABAMA

EXHIBIT B

Case 5:11-cv-02484-SLB Date (88 of 10/11/2011 08/15/11 of 79 2 of 4 Case: 11-14532 Document 130) Filed: 110-2 Filed Page: 37 Page

IN THE UNITED STATESDISTRICT COURT FOR THE NORTHERI\ DISTRICT OF ALABAMA HISPANICINTERESTCOALITION OF ALABAMA; et al., Plaintiffs.
VS.

Case Number: 5:11-cv-02484-SLB

ROBERTBENTLEY,in his official capacity asGovernor the State Alabama:et al., of of Defendants. RT. REV. HENRY N. PARSLEY, JR.,in his official capacity Bishopof the Episcopal as Church theDiocese Alabama: al. in of et
Plaintiffs,
VS.

CaseNumber: 5:11-cv-02736-SLB

ROBERT BENTLEY, in his official capacity as Governorof the Stateof Alabama; et al., Defendants. TINITED STATES OF AMERICA,

Plaintiff,
VS.

CaseNumber: 2:11-cv-02746-SLB

STATEOF ALABAMA; GOVERNOR ROBERTJ. BENTLEY,

Defendants.

Case 5:11-cv-02484-SLB Date (89 of 10/11/2011 08/15/11 of 79 3 of 4 Case: 11-14532 Document 130) Filed: 110-2 Filed Page: 38 Page

AFFIDAVIT OF HENRY M. REDDEN Stateof Alabama County of Montgomery Before me, a Notary Public in and for said County and State, personally appeared Henry M. Reddenand, after having beenby me first duly sworn, deposes and saysunderoath as follows: 1. My name is Henry M. Redden. I am over (19) nineteenyearsof age and have personalknowledge of the facts as are set out herein. 2. I am currently the Director of Information Systemsfor the Alabama Departmentof Corrections. I have servedin this position since July of2007. 3. I have been requestedby counsel for the State to run a computer searchto identi$r the number of illegal aliens currently incarcerated in the AlabamaPrison System. 4. At the presenttime, it is not possibleto identifli the total number of illegal aliens incarcerated the custodyof the Alabama Department in of Corrections. This is because our systemdoesnot track inmatesby immigration status. 5. While our recordsindicatean inmate'splace of birth, whetherborn in the United Statesor not, our records do not reflect verification of

Case 5:11-cv-02484-SLB Date (90 of 10/11/2011 08/15/11 of 79 4 of 4 Case: 11-14532 Document 130) Filed: 110-2 Filed Page: 39 Page

which of those inmatesborn aliens.

of the United Statesare illesal

6. I can, however, state that at present there are 182 inmates in the custody of the Department of Corrections who are subject to deportationas a result of having detainersplaced upon them by the Department of Homeland Security Immigration and Customs Enforcement("ICE").

Dir{ctor, Informati Systems on

AlabamaDepartment Corrections of

SWORNTO and SUBSCRIBED BEFOREME on thisthe /,5 19 dayof August, 2011.

(sEAL)

NotarvPublic

Case: 11-14532

Date (91 of 10/11/2011 Filed: 130)

Page: 40 of 79

Exhibit C
to State Defendants Opposition to the Appellants Motions for Injunction Pending Appeal, October 11, 2011

Case 5:11-cv-02484-SLB Date (92 of 110-3 Filed 08/15/11 Page 1 of 15 Case: 11-14532 Document 10/11/2011 Page: 41 of 79 Filed: 130)

FILED
2011 Aug-15 PM 11:51 U.S. DISTRICT COURT N.D. OF ALABAMA

EXHIBIT C

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Case 5:11-cv-02484-SLB Date (94 of 110-3 Filed 08/15/11 Page 3 of 15 Case: 11-14532 Document 10/11/2011 Page: 43 of 79 Filed: 130)

Case 5:11-cv-02484-SLB Date (95 of 110-3 Filed 08/15/11 Page 4 of 15 Case: 11-14532 Document 10/11/2011 Page: 44 of 79 Filed: 130)

Case 5:11-cv-02484-SLB Date (96 of 110-3 Filed 08/15/11 Page 5 of 15 Case: 11-14532 Document 10/11/2011 Page: 45 of 79 Filed: 130)

Case 5:11-cv-02484-SLB Date (97 of 110-3 Filed 08/15/11 Page 6 of 15 Case: 11-14532 Document 10/11/2011 Page: 46 of 79 Filed: 130)

Case 5:11-cv-02484-SLB Date (98 of 110-3 Filed 08/15/11 Page 7 of 15 Case: 11-14532 Document 10/11/2011 Page: 47 of 79 Filed: 130)

Case 5:11-cv-02484-SLB Date (99 of 110-3 Filed 08/15/11 Page 8 of 15 Case: 11-14532 Document 10/11/2011 Page: 48 of 79 Filed: 130)

Case 5:11-cv-02484-SLB Date(100 of10/11/2011 08/15/11 Page 9 of 15 Case: 11-14532 Document 110-3 Filed Page: 49 of 79 Filed: 130)

Case 5:11-cv-02484-SLB Documentof10/11/2011 08/15/11 Page 10 of 15 Case: 11-14532 Date(101 110-3 Filed Page: 50 of 79 Filed: 130)

Case 5:11-cv-02484-SLB Documentof10/11/2011 08/15/11 Page 11 of 15 Case: 11-14532 Date(102 110-3 Filed Page: 51 of 79 Filed: 130)

Case 5:11-cv-02484-SLB Documentof10/11/2011 08/15/11 Page 12 of 15 Case: 11-14532 Date(103 110-3 Filed Page: 52 of 79 Filed: 130)

Case 5:11-cv-02484-SLB Documentof10/11/2011 08/15/11 Page 13 of 15 Case: 11-14532 Date(104 110-3 Filed Page: 53 of 79 Filed: 130)

Case 5:11-cv-02484-SLB Documentof10/11/2011 08/15/11 Page 14 of 15 Case: 11-14532 Date(105 110-3 Filed Page: 54 of 79 Filed: 130)

Case 5:11-cv-02484-SLB Documentof10/11/2011 08/15/11 Page 15 of 15 Case: 11-14532 Date(106 110-3 Filed Page: 55 of 79 Filed: 130)

Case: 11-14532

Date(107 of10/11/2011 Filed: 130)

Page: 56 of 79

Exhibit D
to State Defendants Opposition to the Appellants Motions for Injunction Pending Appeal, October 11, 2011

Case 5:11-cv-02484-SLB Date(108 of10/11/2011 08/05/11 Page 1 of 10 Case: 11-14532 Document 82-3 Filed Page: 57 of 79 Filed: 130)

FILED
2011 Aug-05 PM 10:50 U.S. DISTRICT COURT N.D. OF ALABAMA

Exhibit 3

Case 5:11-cv-02484-SLB Date(109 of10/11/2011 08/05/11 Page 2 of 10 Case: 11-14532 Document 82-3 Filed Page: 58 of 79 Filed: 130)

Case 5:11-cv-02484-SLB Date(110 of10/11/2011 08/05/11 Page 3 of 10 Case: 11-14532 Document 82-3 Filed Page: 59 of 79 Filed: 130)

Case 5:11-cv-02484-SLB Date(111 of10/11/2011 08/05/11 Page 4 of 10 Case: 11-14532 Document 82-3 Filed Page: 60 of 79 Filed: 130)

Case 5:11-cv-02484-SLB Date(112 of10/11/2011 08/05/11 Page 5 of 10 Case: 11-14532 Document 82-3 Filed Page: 61 of 79 Filed: 130)

Case 5:11-cv-02484-SLB Date(113 of10/11/2011 08/05/11 Page 6 of 10 Case: 11-14532 Document 82-3 Filed Page: 62 of 79 Filed: 130)

Case 5:11-cv-02484-SLB Date(114 of10/11/2011 08/05/11 Page 7 of 10 Case: 11-14532 Document 82-3 Filed Page: 63 of 79 Filed: 130)

Case 5:11-cv-02484-SLB Date(115 of10/11/2011 08/05/11 Page 8 of 10 Case: 11-14532 Document 82-3 Filed Page: 64 of 79 Filed: 130)

Case 5:11-cv-02484-SLB Date(116 of10/11/2011 08/05/11 Page 9 of 10 Case: 11-14532 Document 82-3 Filed Page: 65 of 79 Filed: 130)

Case 5:11-cv-02484-SLB Date(117 of10/11/2011 08/05/1166 of 7910 of 10 Case: 11-14532 Document 82-3 Filed Page: Page Filed: 130)

Case 5:11-cv-02484-SLB Date(118 of10/11/2011 08/05/11 Page 1 of 10 Case: 11-14532 Document 82-3 Filed Page: 67 of 79 Filed: 130)

FILED
2011 Aug-05 PM 10:50 U.S. DISTRICT COURT N.D. OF ALABAMA

Exhibit 3

Case 5:11-cv-02484-SLB Date(119 of10/11/2011 08/05/11 Page 2 of 10 Case: 11-14532 Document 82-3 Filed Page: 68 of 79 Filed: 130)

Case 5:11-cv-02484-SLB Date(120 of10/11/2011 08/05/11 Page 3 of 10 Case: 11-14532 Document 82-3 Filed Page: 69 of 79 Filed: 130)

Case 5:11-cv-02484-SLB Date(121 of10/11/2011 08/05/11 Page 4 of 10 Case: 11-14532 Document 82-3 Filed Page: 70 of 79 Filed: 130)

Case 5:11-cv-02484-SLB Date(122 of10/11/2011 08/05/11 Page 5 of 10 Case: 11-14532 Document 82-3 Filed Page: 71 of 79 Filed: 130)

Case 5:11-cv-02484-SLB Date(123 of10/11/2011 08/05/11 Page 6 of 10 Case: 11-14532 Document 82-3 Filed Page: 72 of 79 Filed: 130)

Case 5:11-cv-02484-SLB Date(124 of10/11/2011 08/05/11 Page 7 of 10 Case: 11-14532 Document 82-3 Filed Page: 73 of 79 Filed: 130)

Case 5:11-cv-02484-SLB Date(125 of10/11/2011 08/05/11 Page 8 of 10 Case: 11-14532 Document 82-3 Filed Page: 74 of 79 Filed: 130)

Case 5:11-cv-02484-SLB Date(126 of10/11/2011 08/05/11 Page 9 of 10 Case: 11-14532 Document 82-3 Filed Page: 75 of 79 Filed: 130)

Case 5:11-cv-02484-SLB Date(127 of10/11/2011 08/05/1176 of 7910 of 10 Case: 11-14532 Document 82-3 Filed Page: Page Filed: 130)

Case: 11-14532

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Page: 77 of 79

Exhibit E
to State Defendants Opposition to the Appellants Motions for Injunction Pending Appeal, October 11, 2011

Case: 11-14532

Date(129 of10/11/2011 Filed: 130)

Page: 78 of 79

Case: 11-14532

Date(130 of10/11/2011 Filed: 130)

Page: 79 of 79