Central Alabama Fair Housing Center v. Magee (835 F. Supp. 2d 1165, 2011)

OPINION

MYRON H. THOMPSON, District Judge.

This lawsuit is a challenge to the application of § 30 of the Beason-Hammon Alabama Taxpayer and Citizen Protection Act (commonly referred to as “HB 56”), 2011 Ala. Laws 535, which, when combined with another Alabama statute, essentially prohibits individuals who cannot prove their citizenship status from staying in their manufactured homes. The plaintiffs are the Central Alabama Fair Housing Center, the Fair Housing Center of Northern Alabama, the Center for Fair Housing, Inc., and two individuals proceeding under pseudonym as John Doe # 1 and John Doe #2. The defendants are Julie Magee, in her official capacity as Alabama Revenue Commissioner, and Jimmy Stubbs, in his official capacity as Elmore County Probate Judge. The plaintiffs claim, among other things, that this application of HB 56 violates the Supremacy Clause of the United States Constitution (as enforced through 42 U.S.C. § 1983) and the Fair Housing Act (“FHA”), 42 U.S.C. § 3604. The jurisdiction of the court has been invoked pursuant to 28 U.S.C. §§ 1331 and 1343.

This as-applied challenge to HB 56 is now before the court on the plaintiffs’ motion for a preliminary injunction. As explained below, the motion will be granted.

I. BACKGROUND

A. Passage of HB 56

In June 2011, the Alabama legislature passed a comprehensive and far-reaching state immigration law: HB 56. For example: § 7 prohibits an “alien who is not lawfully present in the United States” from receiving any state or local public benefits; § 8 makes it unlawful for an alien not lawfully present to enroll in or attend any public college; § 10 makes it a crime to fail to “complete or carry an alien registration document”; § 11 makes it “unlawful for an unauthorized alien to knowingly apply for work, solicit work in a public or private place, or perform work as an employee or independent contractor”; § 12 requires officers who have “reasonable suspicion ... that the person is an alien who is unlawfully present” to make a “reasonable attempt” to determine the citizenship and immigration status of the person; § 13 makes it unlawful to conceal, “harbor,” or shield an “alien from detection,” which includes “entering into a rental agreement ... with an alien to provide accommodations! ] if the person knows or recklessly disregards the fact that the alien is unlawfully present in the United States”; § 17 makes it a “discriminatory practice for a business entity or employer to fail to hire a job applicant who is a United States citizen or an alien who is authorized to work in the United States ... while retaining or hiring an employee who the business entity or employer knows, or reasonably should have known, is an unauthorized alien”; § 18 requires police officers to determine the citizenship of drivers pulled over and cited for driving without a valid license; § 27 voids certain contracts between “a party and an alien unlawfully present”; § 28 requires public schools to determine the citizenship and immigration status of their students; § 29 requires evidence of citizenship or lawful residence for voter registration; and § 30 prohibits “business transactions” between an “alien not lawfully present” and the State or a political subdivision. HB 56 (Doc. No. 31-1), available electronically at Ala.Code § 31-13-29 (West 2011).

In sum, as Representative Micky Ray Hammon put it: “This [bill] attacks every aspect of an illegal immigrant’s life. They will not stay in Alabama.... [T]his bill is designed to make it difficult for them to live here so they will deport themselves.” Leg. Session (Doc. No. 14-3, at 27).

B. Challenge to § 30 of HB 56

On November 18, 2011, after observing how the State was applying HB 56, the plaintiffs filed this lawsuit. Though the statute has many provisions, this litigation focuses exclusively on § 30 as applied to Alabama’s manufactured homes statute, Ala.Code § 40-12-255.

Section 30 of HB 56 makes it unlawful for “[a]n alien not lawfully present in the United States” to enter into, or attempt to enter into, “a business transaction with the state or a political subdivision of the state.” HB 56 § 30 (Doc. No. 31-1) at 68. Under § 30(d) of HB 56, an individual who enters into or attempts to enter into such a transaction commits a Class C felony, id., and can be imprisoned up to ten years. 1975 Ala.Code § 13A-5-6(a)(3).

Meanwhile, in lieu of an ad valorem property tax, § 40-12-255 requires certain owners of manufactured homes pay an annual registration fee to obtain an identification decal that must be visibly displayed on the exterior of their manufactured home. 1975 Ala.Code § 40-12-255(a).

The registration and fee are due Octo^er ^ eac^ ^ear an(^ considered delin(pent if not paid by November 30, at which point a noncompliant owner of a manufactured home can be given a civil fine or face criminal charges for a Class C misdemeanor, id. § (1), punishable up to three months in jail. 1975 Ala.Code § 13A-5-7(a)(3). In addition, § 40-12-255 requires that the owner of a manufactured home obtain a permit “to move said manufactured home on the highways of Alabama,” and a current registration is required to obtain the moving permit. 1975 Ala.Code § 40-12-255(j). As above, moving a manufactured home without a permit is subject to civil penalties and criminal prosecution as a Class C misdemeanor. Id.

Defendant Magee is the Revenue Commissioner for the State and oversees the collection of taxes, including the registration fees for manufactured homes. See 1975 Ala. 40-2-11. Manufactured homes are registered through county offices, such as a revenue commissioner’s office or a probate office. Defendant Stubbs is the Elmore County Probate Judge and oversees manufactured-home registration in Elmore County. Since HB 56 went into effect, Commissioner Magee has placed information about it on the Department of Revenue’s website and provided county officials, such as Judge Stubbs, with training and instruction regarding HB 56 generally and § 30 more specifically.

The phrase “business transaction,” as defined by § 30 in HB 56, appears to be unique in Alabama law and has not previously been used in this manner. Accordingly, there has been considerable debate as to whether a “business transaction” includes any undertaking that involves financial resources going to a state or local official, no matter how mundane. Since this litigation began, the Alabama Attorney General has provided some guidance about the outer limits of the scope of “business transactions” under § 30. See Luther Strange, Guidance Letter from Ala. Atty. Gen., No. 2011-02 (Dec. 2, 2011) (Doc. No. 79-4). Regardless of the outer limits of this term and even with the new guidance letter, it is undisputed that the State’s interpretation of § 30 includes the transactions at issue here: the payment of registration fees and other requirements associated with § 40-12-255. Thus, Commissioner Magee’s office understands § 30 of HB 56 to apply to § 40-12-255, the Alabama manufactured homes statute, which means, among other things, that individuals who cannot verify their citizenship or lawful residency are precluded from registering their manufactured homes.

Taken together, therefore, the court finds that the application of § 30 of HB 56 to § 40-12-255 puts aliens who are unable to verify their lawful residency between a rock and a hard place: they face civil and criminal liability for not paying their manufactured home tax, while simultaneously facing civil and criminal liability if they attempt to remove their homes from the State. They can neither stay, nor can they go. In addition, even attempting to pay the registration fee without verification of lawful residence amounts to a felony. This is not mere speculation. As Magee admits, and the court finds as a matter of fact, when § 30 of HB 56 is applied § 40-12-255, “the individual Plaintiffs cannot continue living in Alabama in manufactured homes they own and maintain on certain property without violating either Section 30 or Ala.Code § 40-12-255 or causing others to violate Section 30.” Def. Magee Proposed Facts (Doc. No. 64, at 8).

C. Temporary Restraint of § 30

Following a hearing on November 23, 2011, the court issued a temporary restraining order enjoining enforcement of § 30 as applied to § 40-12-255, with the order to expire on December 7, 2011. Cent. Ala. Fair Hous. Ctr. v. Magee, 2011 WL 5878363 (M.D.Ala. Nov. 23, 2011). Commissioner Magee later filed a motion to dissolve the temporary restraining order, which the court denied on December 1. Cent. Ala. Fair Hous. Ctr. v. Magee, 2011 WL 6010501 (M.DAla. Dec. 1, 2011). Also, on December 1, Commissioner Ma-gee agreed to extend the December 1 § 40-12-255 registration deadline to December 31. On December 7, the court extended the temporary restraining order to December 12, 2011. Cent. Ala. Fair Hous. Ctr. v. Magee, 2011 WL 6090125 (M.DAla. Dec. 7, 2011).

D. Prior Challenges to HB 56

Admittedly, HB 56 was challenged in prior federal litigation by a number of private parties: individual plaintiffs, religious leaders, and several advocacy groups, including the Hispanic Interest Coalition of Alabama, the National Immigration Law Center, the Mexican American Legal Defense and Educational Fund, and the American Civil Liberties Union. Hispanic Interest Coal. of Ala. v. Bentley, 5:11-ev-2484 (N.DAla. July 1, 2011); Parsley v. Bentley, 5:11-cv-2736 (N.D.Ala. Aug. 1, 2011). The United States also challenged HB 56. United States v. Alabama, 2:11-cv-2746 (N.DAla. Aug. 1, 2011).

In different ways, the prior litigation claimed that HB 56, in its entirety and in specific provisions, was unlawful on its face, that is, without implementation. In that litigation, which was filed in the Northern District of Alabama, the court temporarily enjoined all of HB 56 until September 28, 2011, at which time it declined to enjoin the entire Act preliminarily, but found a number of individual sections likely unlawful. Hispanic Interest Coal. of Ala. v. Bentley, — F.Supp.2d -, 2011 WL 5516953 (Sept. 28, 2011) (Blackburn, J.); United States v. Alabama, 813 F.Supp.2d 1282 (N.D.Ala.2011) (Blackburn, J.). The court held that § 30 of HB 56 should not be enjoined. United States v. Alabama, 813 F.Supp.2d at 1349-51, 2011 WL 4469941, at *59-60. Both the private parties and the United States sought a stay of enforcement pending the outcome of their appeal for the non-enjoined sections of HB 56. The Eleventh Circuit Court of Appeals granted in part and denied in part the stay. United States v. Alabama, 443 Fed.Appx. 411, 420, 2011 WL 4863957, at *6 (11th Cir.2011). Relevant here, the appellate court declined to grant a stay pending appeal for the facial challenge to § 30 of HB 56. Id.

In the prior litigation, the State claimed that the United States was “misinterpreting, or at least exaggerating, Section 30” and that there was no reason “why covered ‘business transactions’ would include the payment of property taxes or the payment of court fees.” Alabama Br. (Doc. No. 33-5, at 37). Accordingly, that court interpreted § 30 narrowly and found that it prohibited only “transactions” involving the issuances of a number of licenses, including licenses to drivers, business, professionals, hospitals, and to day care facilities. United States v. Alabama, 813 F.Supp.2d at 1350-51, 2011 WL 4469941, at *60. The court expressly found that “the term ‘business transactions’ does not reach registration requirements,” and therefore that it had “no need to decide whether prohibiting unlawfully-present aliens from complying with state and local government registration laws is prohibited.” Id. at 1351 n. 25, at *60 n. 25.

As the case before this court has revealed, the United States was not exaggerating in the prior litigation. Section 30 has now been applied broadly to prohibit manufactured home registration, which is, essentially, the property tax for certain manufactured homes in Alabama. See 1975 Ala.Code § 40-12-255(a). In this light, § 30’s application here is well beyond anything contemplated in the facial challenge in the prior litigation.

Therefore, as compared to the prior litigation, this case has a very narrow focus. Whereas the first round of litigation challenged HB 56 on its face, this case involves only a very specific application of HB 56. In the prior litigation, the posture of the case as a facial challenge meant that the court had to rely upon the text of the statute and the representations by the State to determine the breadth of § 30— no specific facts or parties subject to enforcement of the law were before the court. As such, that court looked to the “common understanding” of the word “business” to determine how it might modify the term “transaction.” Unfortunately, as that court found, “the words of Section 30 obfuscate its meaning” because the section “declares a ban on business transactions and then proceeds to define ‘business transactions’ with examples, none of which fit within the commonly understood definition of a business transaction.” United States v. Alabama, 813 F.Supp.2d at 1350, 2011 WL 4469941, at *59. Section 30 lists as examples of a “business transaction” an application for or renewal of a vehicle license plate, driver’s license, or business license.

Therefore, the challenge to the application of § 30 to § 40-12-255 presented here was not presented in the prior litigation.

II. DISCUSSION

A. Preliminary-Injunction Standard

A preliminary injunction lasts through the pendency of the litigation to preserve the status quo until a meaningful decision on the merits is rendered. United States v. Lambert, 695 F.2d 536, 539-40 (11th Cir.1983). To obtain this relief, the plaintiffs must demonstrate: (1) a substantial likelihood of success on the merits of their underlying case, (2) that they will suffer irreparable harm in the absence of an injunction, (3) that the balance of the harms suffered by the plaintiffs without an injunction would exceed the harms suffered by the defendants, and (4) that an injunction would not disserve the public interest. Grizzle v. Kemp, 634 F.3d 1314, 1320 (11th Cir.2011). In balancing these factors, while the likelihood of success is generally most important, the court may employ a “sliding scale” by “balancing the hardships associated with the issuance or denial” of the injunction against “the degree of likelihood of success on the merits”; the greater the potential harm, the lower the likelihood of success needs to be. Fla. Med. Ass’n v. U.S. Dep’t of Health, Educ. & Welf, 601 F.2d 199, 203 n. 2 (5th Cir.1979). Accordingly, where the “ ‘balance of equities weighs heavily in favor of granting the injunction, the movantfs] need only show a substantial case on the merits.’ ” Gonzalez ex rel. Gonzalez v. Reno, 2000 WL 381901, at *1 (11th Cir. Apr. 19, 2000) (quoting Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir. June 26, 1981)).

A “preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant clearly established the ‘burden of persuasion’ as to each of the four prerequisites.” Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir.2000) (en banc) (per curiam). That said, whether to issue a preliminary injunction lies within the sound discretion of the district court. Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250, 1254 (11th Cir.2005).

B. Likelihood of Success on the Merits

1. Preemption

The United States Constitution makes federal law the “supreme Law of the Land.” U.S. Const, art. VI, cl.2. For this reason, a “fundamental principle of the Constitution is that Congress has the power to preempt state law.” Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000). In the immigration context, there are three ways in which a state or local law may be preempted by federal law: “(1) where the local law attempts to regulate immigration” (a form of “express” preemption); (2) where implementation of the local law is an obstacle to or conflicts in any manner with any federal laws or treaties (“conflict” preemption); and (3) “where the local law attempts to operate in an area occupied by federal law” (“field” preemption). Garrett v. City of Escondido, 465 F.Supp.2d 1043, 1055 (S.D.Cal.2006) (Houston, J.) (internal quotation marks omitted); see also League of United Latin Am. Citizens v. Wilson, 997 F.Supp. 1244, 1253 (C.D.Cal.1997) (Pfaelzer, J.). If preemption is found, the Supremacy Clause invalidates the state or local law. Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 108, 112 S.Ct. 2374, 120 L.Ed.2d 73 (1992); Denson v. United States, 574 F.3d 1318, 1345 (11th Cir.2009).

The plaintiffs are substantially likely to prevail on their preemption claim. Indeed, every court that has considered a state or local law that conditioned housing on the ability to prove lawful immigration status has held (or, in the context of preliminary-injunctive relief, found it substantially likely) that those laws are preempted. See Lozano v. City of Hazleton, 620 F.3d 170 (3d Cir.2010), vacated, — U.S. -, 131 S.Ct. 2958, 180 L.Ed.2d 243 (2011); United States v. Alabama, 813 F.Supp.2d 1282 (N.D.Ala.2011) (Blackburn, J.); Villas at Parkside Partners v. City of Farmers Branch, 701 F.Supp.2d 835 (N.D.Tex.2010) (Boyle, J.) (“Farmers Branch II ”); Villas at Parkside Partners v. City of Farmers Branch, 577 F.Supp.2d 858 (N.D.Tex.2008) (Lindsay, J.) (“Farmers Branch I”); Lozano v. City of Hazleton, 496 F.Supp.2d 477 (M.D.Pa.2007) (Munley, J.); Garrett, 465 F.Supp.2d at 1056-57.

a. Federal Immigration Law

Enacted in 1952, the Immigration and Nationality Act (INA), 8 U.S.C. § 1101 et seq., established “ ‘a comprehensive federal statutory scheme for regulation of immigration and naturalization’ and set ‘the terms and conditions of admission to the country and subsequent treatment of aliens lawfully in the country.’ ” Chamber of Commerce v. Whiting, — U.S. -, 131 S.Ct. 1968, 1973, 179 L.Ed.2d 1031 (2011) (quoting De Canas v. Bica, 424 U.S. 351, 353, 356, 96 S.Ct. 933, 47 L.Ed.2d 43 (1976)). In Lozano, the Third Circuit Court of Appeals explained that the INA “sets forth the criteria by which ‘aliens,’ defined as ‘any person not a citizen or a national of the United States,’ 8 U.S.C. § 1101(a)(3), may enter, visit, and reside in this country.” 620 F.3d at 196. The court observed that, “Under the INA, there are three primary categories of aliens who may lawfully enter and/or spend time within the United States: (1) ‘nonimmigrants,’ who are persons admitted for a limited purpose and for a limited amount of time, such as visitors for pleasure, students, diplomats, and temporary workers, see 8 U.S.C. § 1101(a)(15); (2) ‘immigrants,’ who are persons admitted as (or after admission, become) lawful permanent residents of the United States based on, inter alia, family, employment, or diversity characteristics, see 8 U.S.C. § 1151; and (3) ‘refugees’ and ‘asylees,’ who are persons admitted to and permitted to stay for some time in the United States because of humanitarian concerns, see 8 U.S.C. §§ 1157-58.” Id. (footnote omitted). The court continued that, “Aliens wishing to be legally admitted into the United States must satisfy specific eligibility criteria in one of these categories, and also not be barred by other provisions of federal law that determine inadmissibility,” and that “Congress has determined that non-citizens who, inter alia, have certain health conditions, have been convicted of certain crimes, present security concerns, or have been recently removed from the United States, are inadmissible, see 8 U.S.C. § 1182, and if detained when attempting to enter or reenter the country, may be subject to expedited removal, see 8 U.S.C. § 1225.” Id.

Notwithstanding this classification system, there were approximately 11.2 million unauthorized aliens living in the United States as of March 2010. Pew Hispanic Center, Unauthorized Immigrant Popula tion: National and State Trends, 2010 29 (2011) (Doc. No. 14-2, at 57). These individuals lack lawful authorization for a variety of reasons, including unlawful entry, visa overstay, marriage fraud, and certain felony convictions. See 8 U.S.C. § 1227. This does not mean, however, that the federal government is doing nothing. For fiscal year 2009, Immigrations and Customs Enforcement (ICE) officers averaged 816 arrests a day and deported approximately 912 more, half of which had committed crimes. Ga. Latino Alliance for Human Rights v. Deal, 793 F.Supp.2d 1317, 1335-36 (N.D.Ga.2011) (Thrash, J.). In fiscal year 2011, ICE removed 396,906 individuals, and nearly 55% of those had committed crimes. ICE Website, Removal Statistics, http://www.iee.gov/removalstatistics/, (last visited December 12, 2011).

Congress has created a number of tools for enforcement of its immigration scheme. Congress has criminalized unlawful entry by an alien and reentry by removed aliens, 8 U.S.C. §§ 1325 & 1326, and made it a crime to “harbor,” knowingly or recklessly, an alien lacking lawful immigration status. 8 U.S.C. § 1323(a)(1)(A)(iii). In fact, for 2010, “immigration offenses were prosecuted in federal court more than any other offense.” Deal, 793 F.Supp.2d at 1335 (citing U.S. Sentencing Commission, 2010 Sourcebook of Federal Sentencing Statistics 11-12 (2010)). Congress, however, has declined to establish criminal penalties relating to the mere presence of unauthorized persons in the country.

The INA tasks the federal government, specifically the Department of Homeland Security (DHS) (which houses ICE), with removing unauthorized aliens and provides detailed guidance for removal procedures, but “it is completely within the discretion of the federal officials to remove persons from the country who are removable.” Lozano, 496 F.Supp.2d at 530. Thus, as a matter of discretion, DHS decides if and when to initiate removal proceedings against unauthorized aliens. As a corollary, federal officials have created priorities for addressing violations of immigration law. As the numbers bear out, the “federal government gives priority to prosecuting and removing illegal immigrants that are committing crimes in this country and to those who have previously been deported for serious criminal offenses such as drug trafficking and crimes of violence.” Deal, 793 F.Supp.2d at 1335.

In the current administration, “ICE has adopted clear priorities that call for the agency’s enforcement resources to be focused on the identification and removal of those that have broken criminal laws, recently crossed our border, repeatedly violated immigration law or are fugitives from immigration court.” ICE Website, supra. For fiscal year 2011, 90% of the 396,906 individuals removed “fell into one of ICE’s enforcement priorities.” Id. On the other hand, “the federal government frequently exercises its discretion not to try to remove persons from the country even though they may lack lawful immigration status,” Lozano, 496 F.Supp.2d at 530 n. 6, and the government “permits several categories of persons who may not be technically lawfully present in the United States to work and presumably live here.” Id. at 530-31.

Despite DHS’s broad discretion to set priorities regarding which aliens, if any, the executive branch wants to focus on for deportation, the process of removal is not automatic. Instead, when DHS decides to seek removal, the alien is typically entitled to a hearing before an immigration judge designed to determine whether she may remain in the country. The immigration judge makes the initial determination as to removability, 8 U.S.C. § 1229a(a)(3), which can be appealed to the Board of Immigration Appeals and, in some instances, the federal courts of appeals. 8 U.S.C. § 1252. Even after those appeals, the Attorney General may cancel removal of certain permanent residents if specific statutory criteria are satisfied. 8 U.S.C. § 1229b(a). The Attorney General may also grant relief to victims of domestic violence and human rights abuses. 8 U.S.C. §§ 1229b(b)(2) & 1231(b). And, in certain situations where an unauthorized person cannot be deported — such as a home country’s refusal to accept the individual — that individual cannot be detained indefinitely. Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). Thus, in addition to setting and regulating immigration classifications, federal law establishes detailed procedures for removing unauthorized aliens.

Two amendments to the INA have focused on undocumented immigrants’ employment and access to social services: the Immigration Reform and Control Act of 1986 (IRCA), Pub.L. No. 99-603, 100 Stat. 3359, and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRI-RA), Pub.L. No. 104-208, 110 Stat. 3009 (1996). These statutes created several mechanisms, such as DHS’s Systematic Alien Verification for Entitlements program (SAVE), that assist in the implementation of those reforms by permitting States and localities to verify an immigrant’s lawful status. As its name indicates, SAVE was designed to assist States in determining an alien’s eligibility for certain public benefits programs, not for determining an alien’s lawful status. 42 U.S.C. § 1320b-7. Similarly, 8 U.S.C. § 1373(c) mandates that ICE “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.” Currently, law enforcement officials are the only officials authorized to verify immigration status under § 1373(c), which is done through the Law Enforcement Support Center (LESC). See United States v. Arizona, 641 F.3d 339, 374 (9th Cir.2011); United States v. Arizona, 703 F.Supp.2d 980, 996 (D.Ariz.2010) (Bolton, J.).

b. “Regulation of Immigration”

The plaintiffs’ first preemption claim is that applying § 30 of HB 56 to Alabama’s manufactured home registration requirements constitutes an impermissible “regulation of immigration.” The plaintiffs are substantially likely to prevail on this claim. Through Article I, the Constitution provides that it is the power of Congress, and Congress alone, “To establish an uniform Rule of Naturalization.” U.S. Const, art. I, § 8 cl. 4. As a result, “the States enjoy no power with respect to the classification of aliens.” Plyler v. Doe, 457 U.S. 202, 225, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982). The authority “to regulate immigration is unquestionably exclusively a federal power.” DeCanas, 424 U.S. at 354, 96 S.Ct. 933; see also Truax v. Raich, 239 U.S. 33, 42, 36 S.Ct. 7, 60 L.Ed. 131 (1915) (explaining that “the authority to control immigration is vested solely in the Federal Government”).

In DeCanas, the Supreme Court held that, because the Constitution vests the federal government with authority over immigration and naturalization, a State’s “regulation of immigration” is preempted. 424 U.S. at 355, 96 S.Ct. 933. The Court, however, recognized that not “every state enactment which in any way deals with aliens is a regulation of immigration and thus per se pre-empted” by the federal government’s exclusive federal power to regulate immigration. Id. Instead, a State “regulates immigration” when it makes “a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain.” Id.

DeCanas applied that concept to a California law that made it unlawful for employers to hire unauthorized aliens and required employers to use federal standards to make determinations about immigration status. The Court concluded that California’s law was not a regulation of immigration because the state law regulated only employment and not presence. Id. at 359-61, 96 S.Ct. 933.

The crux of the issue here is whether § 30 of HB 56, as applied to § 40-12-255, is preempted as a “regulation of immigration” because it “alters the conditions” under which an alien “may remain” in Alabama. It appears to do just that. By effectively barring undocumented immigrants from owning an entire class of dwellings, the statute goes to the very core of an immigrant’s residency. Unlike laws related to the employment of undocumented or unauthorized aliens, which fall under States’ traditional police powers, see Whiting, 131 S.Ct. at 1973, this case is about an immigrant’s residence, which the State has no power to regulate. See Takahashi v. Fish & Game Comm’n, 334 U.S. 410, 419, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948); Yo v. United States, 185 U.S. 296, 302, 22 S.Ct. 686, 46 L.Ed. 917 (1902).

As mentioned above, every federal court that has considered a locality’s attempt to regulate immigration by limiting access to housing for individuals who cannot prove citizenship or lawful residence has been found preempted. Several of these courts did so on the basis that the laws were “regulations on immigration.” The court finds these decisions persuasive.

First, in Farmers Branch II, the court concluded that a local ordinance prohibiting individuals “not lawfully present” from occupying rental property within the city was a regulation of immigration. Acknowledging that federal law allows cities to condition certain local benefits on lawful presence, see 8 U.S.C. § 1621, the court rejected the city’s argument that denying undocumented aliens the ability to obtain rental property in the jurisdiction was a “public benefit.” Farmers Branch II, 701 F.Supp.2d at 854. Instead, the ordinance imposed “additional local restrictions based on federal immigration classifications on those who wish to remain in” the jurisdiction. Id. at 855. “Local regulation that conditions the ability to enter private contract for shelter on federal immigration status is of a fundamentally different nature than the sorts of restrictions on employment or public benefits that have been found not to be preempted regulations of immigration.” Id. Importantly, as the court explained, “restrictions on residence directly impact immigration in a way that restrictions on employment or public benefits do not” because restrictions on housing fundamentally impact an immigrant’s ability to remain in a State. Id. As such, the ordinance was preempted.

Likewise, in Lozano v. City of Hazleton, the Third Circuit addressed a city ordinance regarding immigration, much like HB 56. 620 F.3d at 219-24. The ordinance had two sets of provisions: employment provisions, which imposed sanctions on hiring undocumented workers, and housing provisions, which made it unlawful to “let, lease or rent a dwelling unit to an illegal alien” and made “legal immigration status a condition precedent to entering into a valid lease.” Id. at 179. The housing provisions, Lozano held, were “attempts to regulate residence based solely on immigration status,” and were not within States’ traditional police powers because “[deciding which aliens may live in the United States has always been the prerogative of the federal government.” Id. at 220. Because the “housing provisions regulate[d] which aliens may live” within the jurisdiction, the court found them to be preempted. Id.

To be sure, § 30 does not, on its face, condition residence in Alabama upon an immigration classification. As applied to § 40-12-255, however, the section is the equivalent of such a prohibition, at least for those owning manufactured homes on rented land. Commissioner Magee admits as much: “Section 30 as applied in this instance means that the individual Plaintiffs cannot continue living in Alabama in manufactured homes they own and maintain on certain property without violating either Section 30 or Ala.Code § 40-12-255 or causing others to violate Section 30.” Def. Proposed Facts 8 (Doc. No. 64, at 8). Congress has never gone so far as to support the idea that aliens residing in this country cannot own a home and, further, must forfeit one if they have paid for it. This prohibition on ownership of a manufactured home on the basis of an immigrant’s classification likely amounts to a “regulation of immigration” under DeCanas.

Commissioner Magee contests this court’s reliance on cases like Lozano and Farmers Branch II, pointing out that § 30 is not a “total ban” on housing and that the plaintiffs can still reside, in some limited ways, within the State of Alabama. Nonetheless, while the defendants’ specific application of § 30 does not prohibit every unlawful immigrant from living within the borders of the State, it serves as an effective bar for many unauthorized persons who already own their manufactured home. The relevant fact in Lozano and Farmers Branch II was not that the residency requirements were total bans. They were not: the restrictions applied to rentals, but not home ownership. Exclusion from certain classes of private housing was the crucial problem in each instance. In this way, § 30’s application goes further than either of these “total bans” on rental property, for it actually interferes with the right of home ownership.

Analogous to these cases, the manner in which § 30, as applied to the manufactured homes statute, constitutes a “regulation of immigration” can be seen by looking at the possible cumulative effect of these sorts of laws. In the first case, as it is with § 13 of HB 56 and the ordinances in Lozano and Farmers Branch II, undocumented immigrants cannot live in rental property; in the second case, this one, they can no longer own the manufactured home they have lawfully purchased. The next ease is unknown, but this sort of incremental intrusion is precisely how the slippery-slope toward an actual all-out ban for undocumented immigrant residency works. Cf. generally Cristina M. Rodriguez, The Significance of the Local in Immigration Regulation, 106 Mich. L.Rev. 567, 569 (2008) (describing the thousands of immigration bills recently enacted); Eugene Volokh, The Mechanisms of the Slippery Slope, 116 Harv. L.Rev. 1026 (2003).

Another cumulative effect has to do with the scope of preemption analysis: if every State adopted the rental ordinances and manufactured home ownership bans seen here, undocumented immigrants’ residency in these classes of housing would be impossible nationwide. The State cannot “impose an auxiliary burden upon the ... residence of aliens that was never contemplated by Congress.” Farmers Branch II, 701 F.Supp.2d at 855 (quoting Toll v. Moreno, 458 U.S. 1, 12, 102 S.Ct. 2977, 73 L.Ed.2d 563 (1982) (internal quotes and further citation omitted)). These “auxiliary burdens,” as seen from the shift between rental in prior cases to actual ownership here, is why the court’s perspective is not only Alabama’s law. If Alabama “can regulate as it has here, then so could every state or locality.” Lozano, 620 F.3d at 221; see also Rowe v. N.H. Motor Transp. Ass’n, 552 U.S. 364, 373, 128 S.Ct. 989, 169 L.Ed.2d 933 (2008) (rejecting a the argument that a law was not preempted because it would not apply nationally, since allowing the State to set this requirement “would allow other states to do the same”). As the Third Circuit reasoned: “ ‘[W]e can imagine the slippery slope ... if every local and state government enacted laws purporting to determine that ... [certain persons] could not stay in their bounds. If every city and state enacted and enforced such laws ... the federal government’s control over decisions relating to immigration would be effectively eviscerated.’” Lozano, 620 F.3d at 222 (quoting Farmers Branch I, No. 3:08-ev-1551-B, Hrg. Tr. at 136 (N.D.Tex. Sept. 12, 2008) (Lindsay, J.)).

Put differently, through the Constitution the federal government has the exclusive authority to authorize an immigrant’s entry and exit from the country. By necessity, federal law must also control the time in between: an immigrant’s residency. Congress has chosen a uniform policy for regulating immigrant residency within the United States, which has not meant deporting every removable aliens and instead allowing some to stay.

Commissioner Magee seems to acknowledge that a residency requirement should be preempted under DeCanas. See Magee Supp. Br. 8-9 (Doc. No. 80, at 8-9) (attempting to distinguish this case from other residency requirements). Regardless of whether § 30’s application to § 40-12-255 creates a “total ban” on residency, it is undisputed that it does have this effect for many manufactured home owners in Alabama and does so on the basis of immigration status. That fact is dispositive: “The legal result must be the same, for what cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows. Its inhibition was leveled at the thing, not the name.” Cummings v. Missouri, 71 U.S. 277, 325, 4 Wall. 277, 18 L.Ed. 356 (1866).

c. Implied Preemption

Because “the regulation of aliens is so intimately blended and intertwined with responsibilities of the national government,” where the government acts any state law must yield. Hines v. Davidowitz, 312 U.S. 52, 66, 61 S.Ct. 399, 85 L.Ed. 581 (1941). As such, where the federal government, “in the exercise of its superi- or authority in th[e] field, has enacted a complete scheme of regulation ... states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations.” Id. at 66-67, 61 S.Ct. 399. Indeed, the Supreme Court has long acknowledged that federal immigration policy “has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government.” Galvan v. Press, 347 U.S. 522, 531, 74 S.Ct. 737, 98 L.Ed. 911 (1954).

Accordingly, even in the absence of express preemption, a federal law’s “structure and purpose” can trump a state statute in two ways. Cliff v. Payco Gen. Am. Credits, Inc., 363 F.3d 1113, 1122 (11th Cir.2004). First, “state law is naturally preempted to the extent of any conflict with a federal statute.” Id. A conflict occurs when a state law frustrates the “accomplishment of a federal objection,” Geier v. Am. Honda Motor Co., 529 U.S. 861, 873, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000), or “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines, 312 U.S. at 67, 61 S.Ct. 399. Second, when “Congress intends federal law to ‘occupy the field,’ state law in that area is preempted.” Crosby, 530 U.S. at 372, 120 S.Ct. 2288.

The INA reflects Congress’s objective of exerting federal control over an immigrant’s residency in this country. The court finds that the plaintiffs are substantially likely to prevail on their claim that § 30 of HB 56 is conflict preempted by the INA. Section 30’s application to Alabama’s manufactured home statute creates at least two obstacles to federal immigration policy. First, Alabama’s policy regulates an immigrant’s residency in contradiction to federal policy. Second, HB 56 imposes an impermissible verification scheme in both practice and theory.

Like the legislation at issue in Lozano, § 30 “assume[s] that the federal government seeks the removal of all undocumented aliens.” Lozano, 496 F.Supp.2d at 531. This premise is legally and factually wrong. As discussed above, it is the federal government — not the States — that gets to determine who are permitted into this country and who get to stay once they are here, and the federal government does not seek to remove all undocumented aliens from the country. The mandatory denial of a mobile-home permit therefore ignores the INA’s careful balancing of executive discretion, administrative process, and judicial review. See Plyler, 457 U.S. at 225, 102 S.Ct. 2382 (“The States enjoy no power with respect to the classification of aliens.”).

In short, HB 56 seeks removal of unauthorized persons that the Executive Branch has not initiated removal proceedings against. The sponsors of HB 56 declared that their goal was the “self-deportation” of unauthorized persons. See, e.g., Transcript of Nov. 23, 2011 Hearing, Doc. No. 68, at 17 (Statement of Representative Hammon); id. at 118 (Statement of Senator Beason). As Senator Beason explained, HB 56 was “designed to reduce the number of illegal aliens in the state.” Id. The States, however, cannot accomplish this goal through residency restrictions.

In addition, some unauthorized aliens are not removable under federal law. For instance, Congress has established the category of “temporary protective status” (TPS), see 8 U.S.C. § 1254a, whereby the Secretary of Homeland Security can classify foreign countries as too unsafe or impractical to deport foreign nationals to. Typically, this occurs if there is an ongoing armed conflict or environmental disaster in the area. As of December 1, 2011, nationals of El Salvador, Haiti, Honduras, Nicaragua, Somalia, Sudan, and South Sudan are eligible for TPS. Alabama’s policy of encouraging “self-deportation” of these individuals is an obstacle to federal policy.

Section 30’s application to § 40-12-255 also runs counter to the verification procedures that Congress has established. Under § 30, state and local officials must utilize either SAVE or § 1373(c) to verify an alien’s lawful status before conducting a business transaction. Criminal enforcement of § 30 is limited to § 1373(c) verification, presumably because that system is more accurate. Section 30(f) makes clear that state and local officials “shall not attempt to independently make a final determination of whether an alien is lawfully present in the United States.”

While § 30 attempts to piggyback on DHS’s verification programs, it fails to account for the nuances of federal immigration law. To take just one example: removal and asylum decisions are notoriously unpredictable. See, e.g., Benslimane v. Gonzales, 430 F.3d 828, 829 (7th Cir.2005) (Posner, J.) (noting a reversal rate, in whole or in part, of 40% of Board of Immigration Appeals decisions); Jaya Ramji-Nogales, Andrew I. Schoenholtz & Philip G. Schrag, Refugee Roulette: Disparities in Asylum Adjudication, 60 Stan. L.Rev. 295 (2007) (demonstrating substantial variability between the circuits in immigration decisions). While this lack of uniformity is certainly troubling, it underscores the point that state and local officials are ill-equipped to make removal decisions. Indeed, in “light of the discretionary federal power to grant relief from deportation, a State cannot realistically determine that any particular undocumented [person] will in fact be deported until after deportation proceedings have been completed.” Plyler, 457 U.S. at 226, 102 S.Ct. 2382; see also id. at 236, 102 S.Ct. 2382 (Blackmun, J., concurring) (“[T]he structure of the immigration statutes makes it impossible for the State to determine which aliens are entitled to residence, and which eventually will be deported.”).

Thus, even assuming that HB 56’s verification procedures were perfectly synchronized with the federal government’s processes, § 30 would still pose an obstacle to congressional purpose. The reason is simple: verification reveals only an immigrant’s status at a particular moment in time, which says nothing about whether the federal government has decided to remove that person from the country. Cf. 68 Fed.Reg. 58301, 58302 (Sept. 28, 2000) (“A Systematic Alien Verification for Entitlements (SAVE) response showing no Service record on an individual or an immigration status making the individual ineligible for a benefit is not a finding of fact or conclusion of law that the individual is not lawfully present.”). Magee is making an impermissible leap from undocumented status to removal. Assuming that the former requires the latter runs afoul of federal policy.

Finally, Commissioner Magee contends that § 30’s application to the manufactured home statute is simply an exercise of the State’s licensing authority. She relies principally on Whiting, where a plurality of the Supreme Court held that States may require businesses to use E-Verify and may revoke or suspend business licenses as punishment for hiring undocumented workers. 131 S.Ct. at 1968.

Whiting is inapposite for at least two reasons. First, the Whiting Court addressed licensing in a distinct context: the employment of unauthorized aliens. Congress has expressly given States discretion to issue licenses in this area, thereby saving these schemes in this area from being preempted. IRCA provides: “The provisions of this section preempt any State or local law imposing civil or criminal sanetions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.” 8 U.S.C. § 1324a(h)(2) (emphasis added). The Whiting Court found that Arizona’s license revocation statute fit squarely within this employment-specific savings clause and was not preempted. Whiting, 131 S.Ct. at 1977-78. No similar savings clause exists for state regulation of immigration residency requirements. HB 56, therefore, cannot claim this safe harbor.

Second, assuming the “annual registration free” is an exercise of “licensing” authority, in this case the license intrudes into a quintessentially federal domain: residency requirements. As discussed at length above, applying § 30 of HB 56 to § 40-12-255 has erected a residency requirement for mobile home owners living on rented property. Preemption cannot be escaped by recasting this prohibition as a universal “licensing” requirement. The provision is directed at a specific group: aliens who cannot establish their lawful residency. The Supreme Court long ago made clear that States cannot require the registration of aliens. Hines, 312 U.S. at 56-60, 61 S.Ct. 399 (discussing Pennsylvania’s Alien Registration Act). Accordingly, because this application of § 30 establishes a de facto residency requirement through its annual decal process, it is preempted.

Therefore, through the creation of a residency regulation for unauthorized aliens, Alabama has usurped federal control over immigration policy. Whether this incursion is labeled express or conflict preemption, the plaintiffs have established by a substantial likelihood that it is void under the Supremacy Clause.

2. Fair Housing Act

The FHA prohibits actions that “make unavailable” or “deny” a dwelling “to any person because of’ his race or national origin. 42 U.S.C. § 3604(a). The statute also proscribes actions that “discriminate against any person in the terms, conditions, or privileges ... in the provision of services or facilities in connection therewith[] because of’ his race or national origin. Id. § 3604(b).

The plaintiffs allege that the defendants’ application of § 30 of HB 56 to Alabama Code § 40-12-255 violates both subparts (a) and (b) of § 3604, that is, the FHA. It is undisputed that, as applied to § 40-12-255, § 30 effectively “makes unavailable” a manufactured home and changes the terms or conditions of residing in a manufactured home by conditioning residence on a demonstration of lawful presence in the United States. The plaintiffs argue that HB 56 discriminates against Latinos. Commissioner Magee counters that HB 56 complies with the FHA because it has nothing to do with race or national origin; it has to do with lawful immigration status, which is beyond the ambit of the FHA.

The FHA recognizes claims of intentional discrimination, as well as those brought under a disparate-impact theory. See Schwarz v. City of Treasure Island, 544 F.3d 1201, 1216-17 (11th Cir.2008); Jackson v. Okaloosa County, 21 F.3d 1531 (11th Cir.1994). The plaintiffs have alleged violations of the FHA under both theories, and the court finds that they are likely to succeed on each claim.

Unlike the preemption claim, which “must be based on the language of the Act alone and not the motivation for its enactment,” Hispanic Interest Coalition, — F.Supp.2d at -, 2011 WL 5516953, at *17, the discrimination claims under the FHA require an inquiry into, among other things, the motivation for passing the statute, and they call for a more searching inquiry into the background of HB 56.

a. Intentional Discrimination

The plaintiffs first argue that HB 56 was passed to intentionally discriminate against Latinos in violation of the FHA. To prove intentional discrimination, the plaintiffs must demonstrate that race or national origin had “some role” in the passage of HB 56. Sofarelli v. Pinellas County, 931 F.2d 718, 722 (11th Cir.1991); United States v. Pelzer Realty Co., 484 F.2d 438, 443 (5th Cir.1973). In making this determination under the FHA, the Eleventh Circuit has followed the factors outlined in Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). See Hallmark Developers, Inc. v. Fulton County, 466 F.3d 1276, 1283-84 (11th Cir. 2006) (quoting United States v. Hous. Auth. of City of Chickasaw, 504 F.Supp. 716, 727 (S.D.Ala.1980) (Hand, J.), which was quoting Arlington Heights).

Though an Equal Protection case, the Arlington Heights standard is used in FHA cases generally, e.g., Hallmark, 466 F.3d at 1283-84, and is of particular relevance here because the court addressed what it means for a multi-member body, such as the Alabama legislature, to take an action, at least in part, “because of’ an impermissible factor. As in the FHA context, “[p]roof of racially discriminatory intent or purpose is required” to demonstrate that an action is unlawful. Arlington Heights, 429 U.S. at 265, 97 S.Ct. 555. That said, intentional discrimination “does not require a plaintiff to prove that the challenged action rested solely on racially discriminatory purposes,” because “[r]arely can it be said that a legislature or administrative body operating under a broad mandate made a decision motivated solely by a single concern or even that a particular purpose was the ‘dominant’ or ‘primary’ one.” Id. Race or national origin, however, is not just another competing factor for legislators to consider, and, when “there is proof that a discriminatory purpose has been a motivating factor in the decision,” judicial deference to the legislative act is no longer justified. Id. at 265-66, 97 S.Ct. 555.

With this in mind, Arlington Heights explained: “Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Id. at 266, 97 S.Ct. 555; cf. Hallmark, 466 F.3d at 1283 (“ ‘Because explicit statements of racially discriminatory motivation are decreasing, circumstantial evidence must often be used to establish the requisite intent.’ ” (quoting Chickasaw, 504 F.Supp. at 727)). “[Wjithout purporting to be exhaustive,” Arlington Heights identified five “subjects of proper inquiry in determining whether racially discriminatory intent existed” in the decision. 429 U.S. at 268, 97 S.Ct. 555

First, the “impact of the official action ... may provide an important starting point. Sometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face.” Id. at 266, 97 S.Ct. 555. Effect is an important “starting point” because the “impact of an official action is often probative of why the action was taken in the first place since people usually intend the natural consequences of their actions.” Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 487, 117 S.Ct. 1491, 137 L.Ed.2d 730 (1997).

Second, the court may consider the “historical background of the decision ..., particularly if it reveals a series of official actions taken for invidious purposes.” Arlington Heights, 429 U.S. at 266, 97 S.Ct. 555. This also means the court “may take into account any history of discrimination by the decisionmaking body or the jurisdiction it represents.” Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810 (4th Cir.1995); see also Hallmark, 466 F.3d at 1283-85.

Third, and another form of historical background, the court may consider the “specific sequence of events leading up to the challenged decision,” which “may shed some light on the decisionmaker’s purposes.” Arlington Heights, 429 U.S. at 268, 97 S.Ct. 555.

Fourth, both procedural and substantive departures from typical decision-making practices can be considered. Arlington Heights, 429 U.S. at 267-68, 97 S.Ct. 555. Substantive departures exist when “factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached.” Id. at 267, 97 S.Ct. 555.

Fifth, “the legislative or administrative history may be highly relevant, especially where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or report.” Id. at 268, 97 S.Ct. 555. In looking at contemporaneous statements, along with statements made in the sequence of events leading up to the decision, courts are mindful of terms that may appear benign but are in fact “camouflaged racial expressions” or are pretext for animus against a particular group. Smith v. Town of Clarkton, 682 F.2d 1055, 1066 (4th Cir.1982); see also Greater N.O. Fair Hous. Action Ctr. v. St. Bernard, Parish, 648 F.Supp.2d 805, 811-12 (E.D.La.2009) (Berrigan, J.); Doe v. Village of Mamaroneck, 462 F.Supp.2d 520, 530 (S.D.N.Y.2006) (McMahon, J.).

Further, Arlington Heights recognized that, in “some extraordinary instances the members might be called to the stand at trial to testify concerning the purpose of the official action.” Arlington Heights, 429 U.S. at 266 at 268, 97 S.Ct. 555. In such an instance, “a legislator may testify only to his own motivations, his opinion regarding the motivation of the body as a whole, the information on which the body acted, the body’s knowledge of alternatives, and deviations from procedural or substantive rules typically employed.” Cano v. Davis, 193 F.Supp.2d 1177, 1180 (C.D.Cal.2002) (three-judge court) (Morrow, J.).

The court recognizes that “[pjroving the motivation behind official action is often a problematic undertaking,” especially when dealing with a body the size of the Alabama legislature. Hunter v. Underwood, 471 U.S. 222, 228, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985). Nonetheless, Underwood powerfully affirms the approach of looking to legislative purpose through the statements made in legislative deliberation. When considering the Alabama Constitutional Convention of 1901, the Supreme Court looked at evidence demonstrating that the law was “part of a movement” that had a racially discriminatory purpose. 471 U.S. at 229, 105 S.Ct. 1916. As the district court had done, Underwood then looked to statements of the Convention’s president as “evidence of legislative intent” and went on to consider “the proceedings of the convention, several historical studies, and the testimony of two expert historians.” Id.

In essence, as the Supreme Court has explained, “the inquiry is practical.” Personnel Admin, of Mass. v. Feeney, 442 U.S. 256, 279 n. 24, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979). “What a legislature or any official entity is ‘up to’ may be plain from the results they achieve, or the results they avoid. Often it is made clear from what has been called ... the give and take of the situation.” Id. (internal quotes and citation omitted). Put differently, “[discriminatory intent may be inferred from the totality of the circumstances.” LeBlanc-Stemberg v. Fletcher, 67 F.3d 412, 426 (2d Cir.1995).

To begin, there is substantial evidence that concern for illegal immigration was behind the passage of HB 56. HB 56 itself proclaims that “illegal immigration is causing economic hardship and lawlessness,” which is “encouraged” when public agencies “provide public benefits without verifying immigration status.” HB 56 § 2 (Doc. No. 31-1, at 5). These problems, HB 56 finds, are exacerbated by the “costs incurred by school districts for the public elementary and secondary education of children who are aliens not lawfully present in the United States,” which has created a “compelling need for the State Board of Education to accurately measure and assess the population of students who are aliens not lawfully present in the United States.” Id. When coupled with other policies that “impede and obstruct the enforcement of federal immigration law, undermine the security of our borders, and impermissibly restrict the privileges and immunities of the citizens of Alabama,” it is in Alabama’s “compelling public interest to discourage illegal immigration.” Id. Moreover, numerous statements by both Alabama Senators and Representatives confirm these findings.

Nevertheless, after considering the factors listed in Arlington Heights — the effeet of the bill, its historical background, the sequence of events leading up to its enactment, its substantive departures, and the contemporaneous statements of legislators — the court is convinced that, while the record clearly establishes that concern about illegal immigration was a substantial factor behind the passage of HB 56, there is substantial evidence that race and national origin also played a role in the passage of HB 56.

First, the effect of HB 56 falls disproportionately upon Latinos. Until recently, Alabama had only a minuscule Latino population. Today, however, Latinos comprise approximately 3.7% of the State’s population. And like the broader national trend, the unauthorized immigrant population in Alabama has increased dramatically in recent years: from 5,000 in 1990 to 120,000 in 2010. Though unauthorized immigrants account for roughly 2.5% of the State’s population, id. at 52, the overwhelming majority (between 65% and 77%) of these immigrants in Alabama are Latino. In short, Latinos make up a disproportionate share of the State’s foreign-born population and constitute a large majority of the State’s non-citizen population, which is why HB 56 has the greatest impact on this community.

Second, while the plaintiffs do not allege that there were any deviations of procedure with respect to HB 56, they do argue that the State departed substantively from values it would normally prioritize when it passed the statute. The court agrees that, with HB 56, the State departed dramatically from the way it has historically treated, indeed, prioritized the treatment of, children. Alabama, through each of its constitutions, has viewed education as a crucial component to a child’s welfare, see Opinion of the Justices, 624 So.2d 107, 158 (Ala.1993), abrogated on other grounds by Ex Parte James, 836 So.2d 813 (Ala.2002), and treats characteristics of a child’s parents that detract from education (like poverty or an unsafe environment) as obstacles to overcome. In fact, when “a parent is unable or unwilling to meet the basic parental responsibilities to provide the child food, clothing, shelter, health care, education, nurturing, and protection,” a juvenile court has grounds to terminate parental rights. B.B.T. v. Houston County Dep’t of Hum. Servs., 89 So.3d 169, 171, 2011 WL 5436314, at *2 (Ala.Civ.App. Nov. 10, 2011) (citing 1975 AIa.Code 12-15-319). In those circumstances, the State steps in to provide for the child, regardless (and despite) of what happens to the parent or what any decisions they have made.

In stark contrast, for the sake of addressing illegal immigration, HB 56 departs from the State’s general treatment of children. To that end, HB 56 attempts to combat immigration in two ways. First, the statute envisions reporting to the federal government the “unfair” costs of immigration borne by the State due to its lax immigration enforcement. Second, HB 56 provides strong incentives for undocumented aliens to leave the State (or “self-deport”) even if, and despite the fact that, their children are U.S. citizens.

Specifically, § 28 of HB 56 serves the first goal by requiring “[ejvery public elementary and secondary