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State Immigration Enforcement: An Analysis of Oklahoma House Bill 1436 (2014)

 

 

House Bill 1436 was passed by the House Judiciary Committee on February 19, 2014 and is currently on the House floor.  Sponsored by Rep. Mike Turner, this omnibus immigration bill would go into effect on January 1, 2015 and would do the following:

 

  • Make the smuggling of those unlawfully present in the U.S. a felony in Oklahoma and permit the seizure of property used in “smuggling” or in “transporting or harboring” undocumented immigrants;
  • Prohibit any limitations by state or local government agencies on the enforcement of federal immigration laws, including federal misdemeanors for failing to carry alien registration documents;
  • Permit warrantless arrests by local police of those believed to be subject to an immigration removal order or an ICE detainer, those convicted of an aggravated felony, or those lacking alien registration documents;
  • Mandate that local law enforcement verify with the federal government the immigration status of individuals they stop, detain, or arrest;
  • Permit local police to transport unlawfully present individuals in its custody to federal facilities;
  • Create a cause of action for state residents to force law enforcement and government agencies to enforce federal immigration law as required under the bill;
  • Deny access to economic development incentives for business that do not verify their employees’ employment eligibility through E-Verify system; 
  • Require day laborers to attest to their employment authorization under federal law;
  • Make it a misdemeanor for a person to present or accept a foreign consular identification document for any public purpose or to present or accept an individual taxpayer identification number for any public or private purpose.

 

It is notable that, with the exception of two provisions, this bill is identical to SB 908 which was passed by the Oklahoma State Senate in 2011 but never enacted into law.[1]

 

Smuggling of Humans Unlawfully Present in the U.S.

 

Section 1

Section 1 of HB 1436 creates a new felony for smuggling for profit or commercial purposes individuals unlawfully present in the U.S. The bill defines “human smuggling” quite broadly to include not only transporting individuals known to be unlawfully present in the U.S. but also facilitating their transportation (by making travel arrangements; providing money transmission services, vehicles, or false identification; or selling, leasing, or renting property to the undocumented).

 

Analysis: This section is written so broadly that it appears to convert common commercial transactions such as renting an apartment, selling a car, or giving a ride to an undocumented immigrant into a smuggling offense which may not comply with the federal definition. Thus, this section may be preempted by federal law.  The Immigration and Nationality Act (INA) is a comprehensive law that regulates immigration matters, including §274 that defines alien smuggling to include not only bringing someone into the United States but also transporting, concealing, or harboring them within the U.S. with knowledge or reckless disregard that they are in the U.S. in violation of the law.[2] While the INA does not expressly preempt state laws regarding alien smuggling, a strong argument could be made that, through the INA, the federal government occupies the field in this area.

 

Section 3

Section 3 amends Oklahoma’s statute on seizure and forfeiture of property to permit local law enforcement to seize aircraft, vehicles, and vessels used to smuggle immigrants under Section 1 as well as property used to transport or harbor undocumented immigrants (a felony created by HB 1804, the Oklahoma and Citizen Protection Act of 2007).   

 

Analysis: Assuming that Section 1 is preempted by federal law regulating alien smuggling, Section 3 would also likely be preempted under the related INA §274(b) provisions on seizure and forfeiture.   

 

State and Local Enforcement of Federal Immigration Laws

 

Section 2

Section 2 of HB 1436 prevents state and local governments from limiting or restricting the extent to which they will assist in enforcing federal immigration laws, including the federal misdemeanors of failing to register as an alien (8 USC §1304(e)) and failing to possess an alien registration document (8 USC §1306(a)).  

 

Analysis: This provision is a response to the recent trend of states and localities choosing to limit their cooperation with Immigration and Customs Enforcement (ICE) in enforcing federal immigration laws. “Sanctuary cities” have adopted policies prohibiting officials from asking questions about an individual’s immigration status. Other localities have “opted out” of the federal Secure Communities program or restricted the circumstances in which police will honor ICE detainers lodged against individuals in local custody.

 

Generally, states’ ability to enforce federal, non-criminal, immigration status violations is limited in the absence of either direct authorization by federal law or coordination of enforcement efforts with federal authorities. Some circuit courts have found that state and local law enforcement officials have the authority to enforce criminal violations of the INA (such the two federal misdemeanors enumerated here) but not civil INA violations. However, this issue was left open by the U.S. Supreme Court in Arizona v. U.S. It is possible that this section could be found to be pre-empted by federal law. Moreover, from afiscal perspective, forcing local police to take on federal immigration enforcement duties diverts scarce time and resources from community policing and crime prevention.

 

Section 5

Section 5 prohibits a governmental body from limiting or restricting enforcement of federal immigration law to less than the full extent permitted by federal law.

 

Analysis: This provision is almost identical to provisions in Arizona’s SB 1070 and Alabama’s HB 56 that were challenged but not invalidated over the course of the pending litigation challenging both laws. Thus, Section 5 is likely to withstand legal challenge.

 

Section 4

Section 4 of HB 1436 permits peace officers to make warrantless arrests of an individual who they have probable cause to believe is an alien subject to an immigration judge’s removal order, an ICE detainer, an aggravated felony indictment or conviction, or has willfully failed to register under the INA.

 

Analysis: Local police may be able to confirm with the Department of Homeland Security (DHS) whether a particular individual has had a removal order or detainer issued against him or her. It is much more difficult to determine whether a particular indictment constitutes an aggravated felony under the INA or whether an individual has willfully failed to register under the INA. Such tasks are substantially complex immigration determinations made by federal judges and fall under the exclusive authority of the federal government. Because of this and the likelihood that peace officers might wrongfully arrest legal resident aliens under this section, it is likely to be found preempted by federal law.  See also the March 28, 2013 decision of the U.S. District Court for the Southern District of Indiana, Buquer v. City of Indianapolis (Case No. 1:11-cv-0708 SEB-MJD), finding a similar provision (Section 20 of Senate Enrolled Act 590) to be preempted.

 

Sections 6 and 9

Section 6 mandates that state and local law enforcement officers verify the identity and immigration status of those individuals they have lawfully stopped, detained or arrested for whom they have probable cause to believe are not lawfully present in the United States. Immigration status will be verified with the federal immigration authorities under 8 USC 1373(c).[3] There is an exception to this mandate when such an inquiry would have obstructed a criminal investigation or the treatment of medical emergency or when an officer was the only officer on duty at the time. Finally, under Section 9, an individual is presumed not to be unlawfully present when he or she presents a valid Oklahoma driver’s license, identification card, tribal enrollment card, concealed weapon permit, or other government-issued photo i.d. that requires proof of legal presence. 

 

Analysis: These sections are strikingly similar to section 2B of Arizona’s SB 1070 – the so-called “show me your papers” provision that the U.S. Supreme Court upheld in 2012.[4] The only substantive difference is that Oklahoma’s HB1436 requires law enforcement officers to have probable cause that the detained individual is unlawfully present while SB 1070 invokes the lower threshold of reasonable suspicion. Section 14 implies that an officer’s probable cause to believe someone is unlawfully present cannot be based on the individual’s race, ethnicity or national origin. Because the Supreme Court allowed Section 2B to go into effect, it is likely that this provision of HB 1426 could withstand a preemption challenge at this time. However, if HB 1426 went into effect and Oklahoma police enforced it in such as way as to single people out for discriminatory treatment or indefinitely detain individuals unable to produce adequatedocumentation of their immigration status, its enforcement could be challenged. This section will impose substantial costs on local authorities by forcing them to become immigration agents and will likely result in the wrongful detention of many U.S. citizens and lawful permanent residents.

 

Section 7

Section 7 of HB 1426 mandates that law enforcement agencies ask ICE to issue an immigration detainer for any individual in local custody whose immigration status has been verified by DHS as being unlawfully present.

 

Analysis: The decision to issue a detainer is to be made by an authorized federal immigration official. Only under INA Section 287(g),[5] are certain state and local agents authorized to perform immigration law enforcement functions and only after ICE has executed an agreement with that law enforcement agency and the designated local officers have received appropriate training and are being supervised by ICE officers. Currently, ICE’s only active 287(g) agreement in Oklahoma is with the Tulsa County Sheriff’s Office.[6] Otherwise, it is the responsibility of ICE officers to identify, apprehend, and decide whether to seek removal of certain individuals from the U.S. However, while a non-designated local police cannot issue an ICE detainer, there does not appear to be any federal prohibition against police contacting ICE to bring an individual to ICE’s attention for consideration of a detainer issuance.    

 

Section 8

Section 8 permits law enforcement to transport individuals in its custody who have been verified by federal immigration authorities as unlawfully present to a federal facility in the state (implicitly without getting ICE’s consent) or outside the state (if ICE agrees to the transfer).

 

Analysis: This section does not define the mechanism by which an individual in criminal custody would be “verified by federal immigration authorities as unlawfully present.”  If the intent is to permit local law enforcement to transport individuals who have had an ICE detainer lodged against them to an ICE facility, the local law enforcement agency would need to have a specific contract with ICE governing transportation services. Otherwise, ICE maintains sole authority to transport individuals in its custody following their release from local criminal custody. ICE’s detention standards govern, among other things, the transportation of immigration detainees.[7] Absent the issuance of an ICE detainer and an explicit decision by ICE to exercise its right to assume custody over the individual, local law enforcement must release the individual as soon as the criminal reason for detaining the individual expires.  Even if ICE has requested that the police continue to hold the individual subject to an ICE detainer, this authority only lasts for 48 hours. In addition to being vague, this section appears to create unnecessary burdens on local law enforcement budgets and could create serious liability for any resulting violations of detainees’ liberty rights.

 

Section 10

Section 10 creates a cause of action for Oklahoma residents to request that a law enforcement agency or governmental body be enjoined from intentionally or knowingly limiting its enforcement of federal immigration laws under HB1436. The section also creates the right to costs and attorney’s fees for successful plaintiffs and provides indemnification for law enforcement officers who are sued.

 

Analysis: If Sections 2 and 7 are found to be preempted by federal law, then this section will not stand. From a policy perspective, this section would incentivize over-enforcement of the law as officers would not wish to be accused of not complying with the mandate. This, in turn, would further undermine the trust of immigrant communities in local police.

 

Employment

 

Section 11

Section 11 of HB 1426 prohibits an entity from receiving economic development incentives (loans, grants or performance-based incentives from a state or local government that receives and uses tax revenues) unless the entity participates in E-Verify. The Attorney General will publish a list of all E-Verify compliant employers on its website.

 

Analysis: E-Verify is a voluntary program created by DHS to allow employers to electronically verify workers’ employment eligibility by accessing DHS and Social Security Administration databases. Oklahoma already requires all public employers and public contractors to participate in E-Verify under the Oklahoma Taxpayer and Citizen Protection Act of 2007 (H.B. 1804) and all employers are required to use the federal I-9 identification system upon hiring new employees. Incentivizing private employers to use E-Verify by making it a prerequisite to obtaining a taxpayer-funded loan or grant does not appear to be pre-empted by federal law. In 2011, the Supreme Court upheld Arizona’s state-wide mandate on E-Verify use in Chamber of Commerce v. Whiting. The court concluded that, although Congress had made E-Verify voluntary at the national level, it had expressed no intent to prevent States from mandating E-Verify participation. Arizona’s Attorney General is also required to list on its website all Arizona employers registered with E-verify.

 

Section 12

Section 12 requires anyone over 18 who wishes to engage in “day labor employment” (defined as employment without a contract specifying an employment term of more than 3 days) in Oklahoma unless the laborer signs an attestation that he or she is a citizen, lawful permanent resident, or otherwise work authorized under 8 USC 1324a(b)(2). Any peace officer or individual authorized to enforce state employment laws who has probable cause to believe someone violated Section 12 can lodge an I-9 violation complaint with ICE.

 

Analysis: This provision attempts to regulate the employment of immigrants which is an area regulated by the federal Immigration Reform and Control Act (IRCA).  Congress purposely excluded independent contractors (including day laborers) as “employees” under IRCA meaning they can lawfully solicit work despite lacking employment authorization. Because this section appears to conflict with the comprehensive federal scheme regulating immigrant employment, it is likely preempted.

 

Identification Documents

 

Section 13

Section 13 of HB 1426 makes it a misdemeanor for a person to knowingly or intentionally offer or accept a foreign government’s consular identification “for any public purpose” (with an exception when an individual presents a consular id to law enforcement officer during a criminal investigation).  Section 13 also makes it a misdemeanor for a person to offer or accept an ITIN as a valid form of identification “for any public of private purpose” (other than paying taxes). 

 

Analysis: Section 13 attempts to criminalize the act of accepting a consular identification for any public purpose. This may interfere with executive discretion in the field of foreign affairs. A similarly broad prohibition in Indiana making the use of identification cards issued by consulates of foreign countries illegal (Section 18 of SEA 590) was enjoined by the U.S. District Court as preempted by federal law as well as in violation of due process.

 

 

 

 

 

This document was prepared in February 2014 for informational purposes only and is not intended as legal advice. For questions, please contact CLINIC’s State & Local Advocacy Attorney Jen Riddle at jriddle@cliniclegal.org or (301) 565-4807.




[1] Section 3 of HB 1436 contains some edits to the way it read in the 2011 version. Section 6 of HB 1436 (the Arizona-style “show me your papers” provision) was an entirely new addition that did not appear in the 2011 bill. 

[2] See 8 U.S.C. §1324, available at: http://www.law.cornell.edu/uscode/text/8/1324

[3] Available at: http://www.law.cornell.edu/uscode/text/8/1373. DHS must respond to inquiries by seeking to verify or ascertain citizenship or immigration status. Procedurally, local, state, and federal law enforcement agencies contact ICE’s Law Enforcement Support Center, which promptly provides immigration status and identity information regarding aliens suspected of, arrested for, or convicted of criminal activity.

[4] The primary difference is that Oklahoma’s HB1436 requires the law enforcement officer to have probable cause (a term that derives from the Fourth Amendment) that the detained individual is unlawfully present while Arizona’s SB 1070 requires that officers have only a reasonable suspicion - a level of suspicion that is lower than probable cause.  

[5] See 8 U.S. Code § 1357, available at: http://www.law.cornell.edu/uscode/text/8/1357

[7] ICE’s Performance-Based National Detention Standards 2011 are available at: http://www.ice.gov/detention-standards/2011/

Recent State & Local Immigration Developments (Aug 2014)

Back to State and Local Immigration Project Page

 

New York Passes Law to Protect Immigrants Against Fraud

 On August 6, 2014, New York enacted the Immigrant Assistance Service Enforcement Act to protect individuals against immigration fraud and punish perpetrators. The law ensures that only attorneys and representatives accredited by the Board of Immigration Appeals (BIA) can provide immigration legal services, strengthens translation requirements, increases civil penalties for immigration fraud violations, and creates two new immigration assistance fraud crimes – a felony and a misdemeanor. The legislation also institutionalizes the New York State Office for New Americans, an entity created by the Governor last March to offer immigrant communities legal services, civics and English as a Second Language classes, and other services. This law will serve as a model for other state legislatures around the country. Congratulations to Catholic Charities of New York which worked with other allies to get the bill passed.

 

Colorado Begins Issuing Licenses to Undocumented Drivers

 Starting August 1, 2014, undocumented residents of Colorado began applying for driver’s licenses at five Department of Revenue locations across the state. Colorado’s law permits residents who cannot demonstrate lawful presence but have a federal Individual Taxpayer Identification Number (ITIN) to apply for a three-year driving license. However, the license is distinguishable from the standard license in that it has a black banner on the front reading “Not Valid For Federal Identification, Voting or Public Benefit Purposes.” An estimated 45,000 people are expected to be eligible.  Colorado was one of eight states that passed laws last year permitting undocumented residents to apply for driving privileges. Illinois, Maryland, Nevada, and Vermont have already begun granting licenses. California and Connecticut will start in January 2015. The implementation of Oregon’s driver’s license law is on hold pending the outcome of a voter referendum in November.

 

According to Appeals Court, Arizona Must Grant Driver’s Licenses to DACA Recipients

On July 7, 2014, the 9th Circuit Court of Appeals ruled against Arizona’s policy of denying driver’s licenses to state residents with Deferred Action for Childhood Arrivals (DACA). According to the court, the plaintiffs succeeded in showing that they were likely to suffer serious harm as a result of the state policy.  The Appeals Court ordered the lower federal court in Phoenix to issue an order prohibiting the state from refusing to accept DACA recipients’ employment authorization documents as proof that they are authorized under federal law to be present in the United States and, therefore, eligible to receive a driver’s license. However the lower court has not yet issued the order because the state of Arizona has asked for a rehearing. The only other state that continues to deny driver’s licenses to DACA recipients is Nebraska.

 

Boston Becomes the Latest Major City to Limit Police Cooperation with ICE

On August 20, 2014, the Boston City Council unanimously passed an ordinance limiting the instances in which police will detain immigrants for possible deportation. The Boston TRUST Act prohibits law enforcement from holding someone pursuant to an Immigration and Customs Enforcement (ICE) detainer unless the individual in custody has been convicted of a violent crime; has been convicted of a felony in the past ten years; is a registered sex offender; is on the federal terrorist watch list; or is the subject of a criminal warrant. Advocates claim the measure will improve relations between police and immigrants who often fear that reporting crimes will result in deportation. According to federal statistics, nearly half of the 757 individuals deported from Boston and Suffolk County from 2008 through March 2014 had no criminal record. The act will also protect Boston from civil lawsuits challenging the constitutionality of detaining immigrants.  Boston’s Mayor believes the ordinance will uphold immigrants’ rights and preserve public safety, family unity, and due process, and has expressed his intent to sign the measure into law. Boston joins more than 200 municipalities across the country that have adopted anti-detainer measures.  

 

Maricopa County Agrees to Stop “Self-Smuggling” Prosecutions Under Arizona Law

 In late July, Maricopa County agreed to settle a lawsuit challenging its controversial policy of prosecuting undocumented immigrants for the felony of conspiring to “smuggle themselves” into the United States. According to a 2005 law, it is a state crime to smuggle unauthorized immigrants into Arizona. While this law was passed to target human smugglers, Maricopa County was using it to also charge migrants – i.e. individuals who had paid to be smuggled into the country. Since 2006, the county convicted approximately 14,000 individuals of felony conspiracy to smuggle themselves. This conviction made them ineligible to legalize their immigration status and become lawful permanent residents in the future. Last year, a U.S. District Court in Phoenix found these prosecutions were an unconstitutional attempt by a state to regulate immigration, which is a federal matter. However, Maricopa County appealed the court’s ruling. Now, the Maricopa County Board of Supervisors has decided to end the litigation, pay $675,000 in attorneys’ fees to the plaintiffs, and cease the practice.

 

San Francisco and Alameda Counties Provide Free Representation to Immigrants Facing Deportation

 New York City was the first jurisdiction in the country to create a functioning public defender system for immigrants facing deportation. In June, the city announced that its municipally funded Immigrant Family Unity Project would guarantee legal representation to all detained immigrants in deportation proceedings. Recently, the public defender offices in San Francisco and Alameda counties have each hired an immigration lawyer to provide free representation to noncitizen public defender clients who face subsequent deportation proceedings. These immigration experts will also advise their fellow public defenders about the complicated intersection between criminal law and immigration law.  Both counties hope that this model will inspire other county public defender offices to develop similar programs which can play a critical role in ensuring due process for immigrants.  In the words of San Francisco Public Defender, Jeff Adachi, “Even a minor brush with the law can trigger devastating consequences for…families. This collateral damage is far worse than a jail sentence and includes losing the right to work, to support one's children and to stay in the country.”

 

New State-Level Data on DACA Applicants and Recipients

 It has been 2 years since the Obama Administration implemented the DACA program.  U.S. Citizenship and Immigration Services (USCIS) recently released statistics on the characteristics of DACA applicants and recipients, including the number of applicants and recipients and the application approval rates based on state and metropolitan area.  The Brookings Institute took a closer look at the metropolitan data. Finally, the Migration Policy Institute (MPI) issued a profile of DACA applicants containing the application rates in the 15 states with the highest number of DACA-eligible residents as well as an interactive map with detailed state profiles of the DACA-eligible population. 

 

This document was prepared in August 2014 for informational purposes only and is not intended as legal advice. For questions, please contact State & Local Advocacy Attorney Jen Riddle at jriddle@cliniclegal.org or (301) 565-4807.

What is the Status of Alabama’s Anti-Immigrant Legislation?

 
Back to the Alabama Resource Center

 

After a series of legal battles, federal courts have blocked many of the harshest provisions of Alabama’s H.B. 56 and H.B. 658. Unfortunately, some parts of these laws remain in effect, including the following provisions:

  • Undocumented immigrants cannot enroll in public universities and colleges and are  not eligible for financial aid in Alabama.
  • People are required to prove they are in the United States legally in order to obtain or renew a driver’s license, register a vehicle, or obtain a business license, commercial license, or professional license.
  • All employers must use the E-Verify system to determine whether new hires are eligible to work in the U.S.
  • Law enforcement officers are required to check the immigration status of people arrested and booked into jail.
  • Undocumented immigrants convicted of violating a state law must be reported to Immigration and Customs Enforcement (ICE) and the Alabama Department of Homeland Security.
  • Law enforcement officers are required to check the immigration status of anyone they reasonably suspect is in the country without authorization. However, they cannot detain or hold someone, nor prolong detention, solely to check immigration status. 

As a result of court decisions, the following provisions of H.B. 56 and H.B. 658 have been amended.  Currently:

  • Proof of lawful status is not necessary to pay state or local taxes, register a mobile home, apply for a marriage license, rent housing, enforce contracts in court, or enroll children in elementary or secondary school.
  • It is not illegal to provide a ride or rent housing to an undocumented immigrant.
  • Attorneys do not need to report their clients’ immigration status to state or federal officials.
  • People in Alabama can hire and work as day laborers.
  • Passengers in cars are not required to answer questions about immigration status. Drivers may only be asked about their immigration status if they fail to present a valid driver’s license.
  • Law enforcement officers cannot stop someone for the sole purpose of checking his or her immigration status or prolong an individual’s detention any longer than the stop otherwise requires in order to check immigration status.

Some areas of the law remain in dispute. H.B. 658 required Alabama to post publically on its website a list of all undocumented immigrants who were detained for a state law violation and appeared in court.  Alabama state officials have said they do not currently have any plans to start maintaining such a list. However, a lawsuit is underway in federal district court challenging the legality of this mandate. The suit alleges that the list would facilitate private discrimination and violate the Supremacy and Due Process clauses of the Constitution. A federal judge in May denied the state’s motion to dismiss the lawsuit.

Finally, while it is not legal to deny children access to elementary or secondary education based on immigration status, there are reports that this may still be occurring in Alabama. The Southern Poverty Law Center notified Alabama’s state superintendent in May that school districts are still asking new students for birth certificates and social security numbers, without indicating that supplying such documentation is voluntary. The U.S. Departments of Justice and Education have recently issued guidance clarifying what documentation schools may ask for from parents.

 

 

 

 

This document was prepared in July 2014 by CLINIC Advocacy Intern Kelly Kidwell Hughes. It is for informational purposes only and is not intended as legal advice. For questions, please contact State & Local Advocacy Attorney Jen Riddle at jriddle@cliniclegal.org or (301) 565-4807. 

Where Is S.B. 1070 Now? (July 2014)

Back to Legal Challenges to Arizona's SB 1070

 

In a decision in June of 2012, the U.S. Supreme Court decided that three of the four contested provisions of Arizona’s controversial S.B. 1070  could not be upheld because they were pre-empted by federal immigration law.

Section 3 of the law required immigrants to carry papers proving they were legally allowed to be in the country. The Supreme Court said this provision was invalid because the federal government had already provided standards for when and how immigrants should receive and carry documentation. Additionally, Arizona’s law would have provided different penalties for failing to carry the correct paperwork, which conflicted with federal penalties.

The Court also struck down Section 5(c) which would have made it a state crime to apply for and hold a job without valid immigration papers. Once again, the Court said this provision conflicted with federal law by criminalizing something the federal government had explicitly chosen not to criminalize.

Finally, the Court struck down Section 6, which would have allowed a law enforcement officer to arrest someone without a warrant if the officer believed that person had done something that would justify deportation. The Supreme Court said only the federal government had the power to make decisions concerning deportability.

 

What is the Status of the “Show Me Your Papers” Provision?

The sole section of S.B. 1070 that the Supreme Court upheld in 2012 was the provision requiring police to determine the immigration status of someone arrested or detained when there is “reasonable suspicion” that the person is unlawfully present in the U.S. The Court said this section did not violate the constitution because nothing in federal immigration law prohibits state law enforcement officers from reporting the status of an immigrant to federal law enforcement officers. The Court also noted that the Arizona statute had language forbidding discrimination based on race or national origin. Although the Court ruled that the provision was not unconstitutional on its face, the Court left open the possibility that the provision could be challenged at a later time based on the way it is implemented or enforced.

At least one civil rights organization has filed a lawsuit based on implementation at the local level. As a result of a suit brought by the ACLU, officials in South Tucson signed a settlement to avoid litigating a racial profiling complaint. The settlement prohibits South Tucson police from detaining people for extended periods of time to determine immigration status, questioning crime witnesses or students about immigration status, and relying on lack of English fluency to assume someone is in the country unlawfully. The settlement also requires the police to participate in education on bias-free policing, check with a supervisor before making immigration-related inquiries, and articulate to police dispatch the reason for stopping a vehicle at the beginning of a traffic stop.

The ACLU has also sued local Arizona law enforcement officials for using racial profiling when carrying out law enforcement duties unrelated to immigration. A federal district judge ruled in 2013 that the sheriff’s office of Maricopa County was using racial profiling to target Latinos. Last October, the court issued a series of mandates including requiring a monitor to keep tabs on the sheriff’s department, increased training, audio and video recording of traffic stops, the creation of a community outreach plan, and a requirement that officers radio in the reason for stopping a vehicle before making contact with passengers.

CLINIC and its affiliates will continue to monitor incidents of racial profiling in Arizona and the implementation of S.B. 1070 throughout the state.

 

What about S.B. 1070’s Harboring Provision?

The harboring provision of S.B. 1070 was not a part of the 2012 Supreme Court case but has been the subject of a separate legal challenge. As a result of this lawsuit, the state of Arizona entered into an agreement with the U.S. Department of Justice to drop the harboring provision, which made it a misdemeanor to transport, conceal, harbor, or shield an undocumented immigrant. Arizona had already been barred from enforcing this provision by an injunction issued in federal district court and upheld by the Ninth Circuit Court of Appeals. The Supreme Court declined to get involved in the matter.   

Arizona agreed to end the legal battle and refrain from enforcing the harboring provision in a deal approved by a federal judge on June 9, 2014.  Harboring an unauthorized immigrant is still prohibited under the Immigration and Nationality Act.  However, the Arizona law would have made harboring a state crime as well. It would also have applied the law more expansively, and with different penalties, than the federal law.

 

Information about the federal harboring law is available on CLINIC’s website.

 

 

This document was prepared in July 2014 by CLINIC Advocacy Intern Kelly Kidwell Hughes. It is for informational purposes only and is not intended as legal advice. For questions, please contact State & Local Advocacy Attorney Jen Riddle at jriddle@cliniclegal.org or (301) 565-4807. 

 

Recent State & Local Immigration Developments (June 2014)

New York City Council Approves Municipal Identification Card Program

On June 26, the New York City Council voted 43-3 to create a municipal identification card for city residents. Starting in early 2015, the new “City ID” card will be available to all New Yorkers, regardless of immigration status, and will be recognized as proof of identity by all city agencies. New York’s municipal ID program will be the largest in the country and could benefit as many as 500,000 undocumented immigrants in addition to other vulnerable New Yorkers. The cards will empower holders to report crimes to the police, allow them to establish their identity to emergency medical responders, and enhance their access to essential services from opening bank accounts and obtaining loans to renting apartments, filling prescriptions, and picking up children from school. According to Mayor de Blasio, who is expected to sign the bill into law, "the municipal ID is more than just a card—it provides New Yorkers who are currently living in the shadows with dignity and peace of mind.” Similar programs are active in a handful of cities including New Haven, Los Angeles, and San Francisco. A recent Center for Popular Democracy report found that municipal ID cards “play a consistently positive role in empowering and protecting vulnerable communities” and result in practical benefits as well as carrying “symbolic importance in creating a sense of shared community and belonging for immigrants and other marginalized individuals.” If you are interested in advocating for municipal IDs in your county or city, please consult CLINIC’s talking points on why such programs are fundamentally fair, make our communities safer, promote community inclusiveness, and further Catholic social teaching as well as a list of ways in which ID cards will enhance individuals’ daily lives.

 

New York City Breaks New Ground by Funding Lawyers for All Detained Immigrant Facing Deportation

This month, the New York City Council allocated $4.9 million dollars to fund the New York Immigrant Family Unity Project. The program began as a pilot last year in two public defenders’ offices but the increased funding will guarantee that, starting in 2015, all of New York City’s poor detained immigrants have legal representation in their removal proceedings. The federal government does not provide immigrants facing deportation with free court-appointed attorneys, and those who are detained are even less likely to be represented by counsel and, as a result, more likely to be deported. According to Councilmember Carlos Menchaca, “New York City will become the first jurisdiction in the nation to have a functioning public defender system for immigrants facing deportation…[and] no family will have a loved one locked up and deported simply because they cannot afford a lawyer.” The project will fund representation for well over 1,300 immigrants, and advocates hope to eventually expand the project to cover all immigrants facing deportation in the state of New York. Proponents believe a state-wide project would save the government millions of dollars by reducing the length of adults’ stay in detention and the costs of foster care and health care for the U.S. citizen children of those deported, as well as savings to employers who have to replace workers who are detained and deported.

 

First of Its Kind State Citizenship Bill Introduced in New York Legislature

On June 16, days before the New York legislature adjourned for 2014, the New York Is Home Act (SB 7879/ A. 10129) was introduced.  The bill would grant “state citizenship” to an estimated 2.7 million non-citizens - both documented and undocumented - who have lived and paid taxes in New York for at least three years. Intended to promote fuller civic, economic, and political participation by immigrants, the bill would confer the right to vote in state and local elections and run for public office in addition to access to state Medicaid coverage, professional licensing, tuition assistance, and driver’s licenses. The responsibilities of state citizenship would include swearing to uphold the state's constitution and laws and committing to serve on a jury. Finally, the bill would limit state and local law enforcement officers’ participation in immigration enforcement by prohibiting them from honoring immigration detainers, restricting ICE’s access to state and local facilities such as courthouses, and limiting information sharing with the Department of Homeland Security without a criminal warrant. The bill’s sponsor, Senator Gustavo Rivera, says the bill is a direct response to the failure of Congress to pass federal immigration reform and he hopes it will start a conversation, both locally and nationally, about what changes can be made at the state level. The bill is expected to be re-introduced in 2015 and may serve as a model for other states seeking to pass pro-immigrant integration measures.

 

Courts Find Utah and Montana Immigration Enforcement Laws Unconstitutional

On June 20, a federal district court in Montana ruled that provisions of a law requiring state agencies to make immigration status determinations before they could grant certain state services were preempted by federal immigration law. Legislative Referendum No. 21 was approved in 2012 by more than 80% of Montana voters and would have required all Montana residents to prove their citizenship or legal immigration status before they could attend a public university, receive unemployment insurance benefits, obtain a professional license, work for a state agency, or receive services for crime victims or the physically disabled. The law permitted state agencies to determine whether or not a Montana resident was an “illegal alien” (the term used by the law) and required state employees to report unlawfully present non-citizens to the federal government. Since only authorized federal agents are permitted to determine someone’s immigration status, the court found this aspect to be an impermissible state regulation of immigration. While the court upheld the provision permitting state agencies to report an individual’s immigration status to ICE, it is believed that they will not do so since they are not permitted to make immigration status determinations in the first place. This law was initially proposed by the legislature, which subsequently referred it to the state’s voters instead.  The Montana Immigrant Justice Alliance attorney who filed the lawsuit hopes that Montana’s legislature and other state legislatures will learn “from this ruling that the state has no business enforcing federal immigration policy and needs to leave these issues to the federal government.”

On June 18, a federal judge in Utah struck down several sections of Utah’s 2011 immigration enforcement law, HB 497. Notably, the court found that federal law preempted the provision allowing warrantless arrests based on the suspicion that someone has violated his or her immigration status as well as the provision making it a state crime to harbor or transport an undocumented individual (including such activities as driving someone to church or to the store). The decision also clarified that people are not required to carry federal documents verifying their immigration status with them at all times. The district court upheld the “show me your papers” provision of Utah’s law that allows police to check the immigration status of those stopped for other lawful reasons. However, it imposed limits on how this section can be enforced. For example, Utah police may not prolong the detention of individuals during traffic stops or other types of stops solely to verify immigration status with federal officials.  Provisions similar to those struck down this month by the Utah court have already been halted in other states including Alabama, South Carolina, Georgia, and Indiana. According to an attorney for the plaintiffs, “[this] decision really is the last across the country to issue a stinging rebuke of the anti-immigration agenda.”

 

Maine Restricts Undocumented Immigrants’ Rights to State Welfare

On June 11, the Maine Department of Health and Human Services ("DHHS") announced a change in who will be eligible for welfare benefits under the state’s General Assistance program that helps low-income residents cover necessary living expenses. Under the previous rules, an applicant was only required to demonstrate need, without verifying his or her immigration status, in order to qualify for the municipally-administered benefits that are jointly funded by state and local taxes. Under the new policy, the state will cease its General Assistance funding for undocumented residents. Maine’s DHHS Commissioner claims the change in policy is required under 8 U.S.C. 1621(a), a federal law that prohibits states from providing certain public benefits to non-citizens without lawful status unless the state has adopted a law affirmatively providing for the provision of such benefits.  According to the Commissioner, Maine does not have such a statute. Among opponents to the recent policy change are Maine’s Attorney General who objected to an earlier and broader proposal to deny General Assistance not only to undocumented immigrants but also to those with lawful status including asylum seekers and asylees. According to the Attorney General’s legal opinion, the proposal would violate the equal protection clause of the U.S. and state constitutions and requires approval by the Maine legislature. She warned, “You can’t make every town in Maine a mini immigration office.” The recent change in policy may affect an estimated 1,000 Maine residents.    

 

Judge Dismisses DACA Grantees’ Lawsuit Seeking In-State Tuition in Georgia

A superior court judge dismissed the lawsuit brought against the Georgia Board of Regents by 39 DACA grantees last year seeking eligibility for in-state tuition at public universities.  According to the board’s policy, non-citizens with “lawful presence” qualify for in-state tuition rates, yet students with DACA have been denied. The plaintiffs argued that this language covers DACA recipients who are recognized as lawfully present by the federal government. According to the court, the case must be dismissed under the concept of sovereign immunity which prevents the state from being sued for “declaratory relief” (a legal term for a judge’s determination of the parties’ legal rights). The DACA students plan to appeal and are also considering filing a new lawsuit in federal court alleging a violation of the equal protection clause of the U.S. Constitution.

 

U.S. Citizen Challenges Tuition Policy of South Carolina Commission on Higher Education 

On June 10, a South Carolina student filed a lawsuit in federal district court challenging the state Commission on Higher Education’s policy that denies U.S. citizens with undocumented parents eligibility for financial aid and in-state tuition. The plaintiff, a U.S. citizen and long-time South Carolina resident, was denied financial aid and in-state tuition because, as a dependent of undocumented parents who are not considered to be state residents, she is also considered a “non-resident” under the commission’s policy. The lawsuit alleges that the student has been denied equal protection and due process under the Fourteenth Amendment of the U.S. Constitution. 

 

New Report Examines States’ Role in Implementing Immigration Reform

The Pew Charitable Trusts recently released a report exploring the critical role that states and localities would play if Congress were to pass immigration reform with a legalization component. Among the state and local governments’ responsibilities in implementing legalization and integrating its beneficiaries are conducting outreach and public education, providing documentation needed to meet the eligibility requirements of the program, offering English language and civics education, and protecting immigrants from fraudulent legal service providers.  The report also provides data and a map of the growth and size of the unauthorized immigrant population across the 50 states.

 

Massachusetts Legislature Declines to Pass Driver’s License Law for Undocumented Residents

On June 23, the Massachusetts legislature voted to send the “Safe Driving Bill” (HR 3285) to study rather than proceeding to approve the legislation.  The bill would have made driver's licenses available to undocumented residents by removing the requirement that applicants present a Social Security number.  Advocates are committed to reviving the bill during next legislative session. Click here for information about the 11 states that have passed laws permitting undocumented drivers to apply for licenses. 

 

Florida Governor Signs Bills on Tuition Equity and Law Licenses into Law

This month Governor Rick Scott signed into law two pro-immigrant measures passed by the state legislature this session. HB 851 extends eligibility for in-state tuition at public universities and colleges to undocumented residents. Click here to listen to an interview with the Florida Conference of Catholic Bishops about advocating for passage of the new tuition equity law.  Governor Scott also signed HB 755, a bill that will permit DACA recipients who have been in the U.S. for over 10 years to practice law so long as they meet the other requirements for acquiring a law license in the state.  

 

 

This document was prepared in June 2014 for informational purposes only and is not intended as legal advice. For questions, please contact CLINIC’s State & Local Advocacy Attorney Jen Riddle at jriddle@cliniclegal.org or (301) 565-4807.

Recent State & Local Immigration Developments (May 2014)

Back to State and Local Immigration Project Page

 

Florida Becomes 20th State to Offer In-State Tuition to Undocumented Students

Advocates had been pushing for tuition equity in Florida for over a decade.  On May 2, 2014 the state legislature passed HB 851, a bi-partisan bill that will grant in-state tuition at public universities and colleges to all qualified Florida residents, regardless of immigration status.  The bill is still awaiting signature by Governor Rick Scott who called it “an exciting day for every student that dreams of a college education.”  Under the new law, Florida high school graduates who attended at least 3 years of high school in the state will now qualify for in-state tuition rates. Approximately 200,000 students may now be able to pursue higher education. According to one young advocate: “Some of Florida’s best and brightest students are forced into low-wage jobs instead of going to college—jobs in construction, agriculture, and housekeeping—that kept me and my fellow immigrant students in the shadows instead of giving us the opportunity to contribute our best to our communities and our state…For me, the passage of the bill is the answer to my prayers and the prayers of all the undocumented youth in Florida.”

 

Legislature Attempts to Pave the Way for Undocumented Lawyers Seeking Bar Admission in Florida

On May 1, 2014, the Florida legislature passed HB 755, a family law bill with a provision authorizing the State Supreme Court to admit to the Florida Bar undocumented attorneys who were brought to the U.S. as children, have been in the country for over 10 years, and have received work authorization and a social security number as long as they meet the other admission requirements.  This law followed a March decision by the Supreme Court of Florida denying admission to DACA recipient Jose Godinez-Samperio based on his undocumented status.  It is now up to the Florida Supreme Court to reconsider its previous decision and decide whether to admit Mr. Godinez-Samperio.  Florida’s law is similar to one passed by the California legislature last year.

 

Supreme Court Will Not Interfere with Fremont’s Anti-Immigrant Housing Ordinance

This month, the U.S. Supreme Court declined to hear the legal challenge to the Fremont, Nebraska ordinance aimed at preventing undocumented immigrants from renting housing.  As a result, the 8th Circuit Court of Appeals’ 2013 decision, which found the city’s rental ordinance does not interfere with federal immigration laws, will stand.  City police began implementing the ordinance last month and report that 140 occupancy licenses have already been issued to renters who have paid the $5 fee and attested to their immigration status. According to Fremont’s mayor, the town has already spent $186,000 defending and enforcing the ordinance and plans to spend up to $1.5 million moving ahead.  Opponents are monitoring the ordinance’s implementation and may bring a future legal challenge if prospective tenants report discriminatory enforcement.  Kansas’ Secretary of State, Kris Kobach, who defended the ordinance, called the Supreme Court’s decision a “bright green light” for cities in other states in the jurisdiction of the 8th Circuit (Arkansas, Iowa, Minnesota, Missouri, North Dakota, and South Dakota) to adopt similar measures. Earlier this year, the Supreme Court declined to hear cases involving similar ordinances in Hazelton, Pennsylvania and Farmers Branch, Texas that were found to be unconstitutional by the 3rd and 5th Circuit Courts. Despite the obvious circuit split, the Supreme Court has been unwilling to get involved so far but may decide to weigh in on the issue at some point in the future.

 

Federal Government Reminds Schools about Immigrants’ Right to Education

On May 8, the Departments of Education and Justice updated their guidance to public elementary and secondary schools about their obligations to provide all children with equal access to an education.  The resources aim “to ensure the schoolhouse door remains open to all” and that enrollment processes do not discriminate on the basis of race, color, national origin, citizenship, or immigration status (including the status of students’ parents or guardians).  Included in the practical guidance are examples of the types of documents schools may accept as proof of a child’s age or residency (including foreign birth certificates) and reminders about the impermissibility of requiring certain documents – such as parents’ state-issued driver’s licenses (which are often unavailable to undocumented residents).  Schools are asked to translate information about enrollment into languages other than English for parents with limited English proficiency.  The Department of Education has resolved complaints against 11 schools or districts since 2011 and investigations are ongoing against schools in Louisiana, New Mexico, and South Carolina. The Justice Department has entered into settlement agreements with school districts in Georgia, Florida, and Virginia.  Examples of improper practices include requiring students to provide their immigration status or date of entry into the U.S. or denying enrollment because of a parent’s decision not to provide the child’s Social Security number.    

 

California Legislature Continues to Lead the Country with Pro-Immigrant Bills

For those looking to promote pro-immigrant integration bills in state legislatures, consider some measures being debated in California this session.  SB 1005 would extend affordable, all-inclusive health coverage to undocumented Californians.  Specifically, it would expand eligibility for Medi-Cal (California's Medicaid program) to low-income individuals who cannot currently qualify due to lack of immigration status and would also create a state-run exchange for the undocumented to purchase health care insurance. Its sponsor claims the bill will save taxpayers money by facilitating preventative treatment and reducing reliance on expensive emergency room care.

Another California bill, SB 1159, would remove professional licensing barriers that prevent undocumented workers from practicing their occupations including doctors, nurses, dentists, psychologists, pharmacists, real estate agents, and security guards.  The bill would allow 40 state boards to accept a federal Individual Taxpayer Identification Number (ITIN) in lieu of a Social Security number as proof of identity for individuals applying for professional licenses.  The bill was passed by the Senate on May 8, 2014 and will now go to the Assembly.  The change would be of tremendous benefit to California’s workforce, an estimated 1.85 million of who are undocumented.

On May 23, the California State Assembly passed AB 1876, a bill that would reduce the cost of phone calls for immigrants and others detained in California’s jails and limit the ability of phone companies, law enforcement agencies, and private prison corporations to profit from inflated phone rates. The exorbitant cost of phone calls for those held in county jails is an affront to human dignity because it prevents detainees from communicating with their families and limits their ability to obtain and communicate with legal counsel.  The bill now moves to the Senate.  

On May 28, the Senate passed SB 1210 which would create the California DREAM loan program to provide loans of up to $4,000 to qualifying undocumented youth who wish to study at participating institutions within the University of California and California State University systems.

 

Reacting to Court Decisions on Immigration Detainers, Dozens of Counties Say “No” to ICE

Two recent court decisions on the use of ICE detainers have resulted in a domino effect of local law enforcement policies limiting cooperation with ICE in enforcing immigration laws. In March, the Third Circuit Court of Appeals found that immigration detainers are not mandatory and that Lehigh County, Pennsylvania could be violating the Constitution by complying with ICE detainers.  In April, a U.S. District Court in Oregon found that Clackamas County sheriffs had violated the Fourth Amendment rights of an individual they continued to hold under an ICE detainer without probable cause. In the wake of these decisions, local law enforcement agencies across the country are changing their policies about when they will hold individuals for ICE.  More than 75 counties in Colorado, Washington, Oregon, and California as well as Lehigh County, Pennsylvania and Somerville, Massachusetts have announced they will only honor detainer requests from ICE under limited circumstances, such as when a federal magistrate has issued an arrest warrant.  Many local law enforcement leaders cited fears of civil liability in addition to concerns about the constitutionality of ICE detainers. A complete list of the jurisdictions that limit compliance with ICE detainers is available here.

In addition, the Department of Homeland Security (DHS) is in the process of conducting a review of federal immigration enforcement policies following a request in March by President Obama to look into ways to make enforcement more “humane.” On May 29, 2014, DHS Secretary Jeh Johnson testified at an oversight hearing before the House Committee on Homeland Security that the controversial Secure Communities program “need[s] a fresh start.”  Through Secure Communities, the fingerprints of people arrested by local police are automatically run through a DHS database so that ICE can decide whether to issue detainers in order to take these individuals into immigration custody.

 

The 15 States with the Largest Immigrant Populations

The Pew Research Center recently compiled a summary of the percentages of foreign-born residents living in each of the 15 “top immigrant states.” According to the 2012 data, 79% of the country’s total immigrants reside in these 15 states. In California, New York, New Jersey, and Florida, one in five residents are foreign-born. Click here to see the data in addition to how the rankings have changed over the past two decades.

 

 

 

 This document was prepared in May 2014 for informational purposes only and is not intended as legal advice. For questions, please contact CLINIC’s State & Local Advocacy Attorney Jen Riddle at jriddle@cliniclegal.org or (301) 565-4807.

State Driver’s License Bills: An Analysis of New Jersey’s S1696 (Apr 2014)

S1696 would establish driving privilege cards for New Jersey residents who cannot prove lawful presence in the United States. It was introduced in the New Jersey Senate on March 17, 2014 by Senators Joseph Vitale and Teresa Ruiz and referred to the Senate Transportation Committee. It is identical to A2135, introduced in the New Jersey Assembly on January 16, 2014.  

S1696 would extend driving privileges to all New Jersey residents, regardless of immigration status.  Currently, in order to qualify for a driver’s license or non-driver ID in New Jersey, an applicant must provide either a valid social security number or proof of lawful presence. S1696 would create a “driving privilege card” for state residents unable to prove legal status. The law would go into effect seven months after its enactment.

 

Section 1

Section 1 of S1696 amends New Jersey Statute 39:3-10 governing the licensing of drivers. Specifically, the bill permits the issuance of a driving privilege card for which the New Jersey Motor Vehicle Commission (MVC) may charge a fee.  

 

Analysis

This section creates a new document called a “driving privilege card” – a document distinguishable from New Jersey’s standard “driver’s license.”  Of the 11 states (and the District of Columbia) that have passed laws extending driving privileges to the undocumented, only two – New Mexico and Washington – offer undocumented residents a driver’s license identical to the license available to those with lawful immigration status. The remaining 10 jurisdictions have created a two-tiered system in which the license issued to undocumented drivers differs in some way from the standard driver’s license. It might have a different title on the face of the document, a distinguishing design and color, and/or include a phrase describing the limits of its use. The below chart summarizes the types of driving privilege regimes that exist for undocumented drivers in the 11 states and Washington D.C.         

 

State

Effective date of driver’s license law

Name of document

Distinguishing color, design or feature

Limiting language on the face of the license

States that already issue driving privileges to the undocumented

New Mexico

2003

Driver’s License

None

None

Washington

2004

Driver’s License

None

None

Utah

 

2005

Driving Privilege Card

Distinguishable format and color. Called "Driving Privilege Card" (instead of "Driver License")

“Not Valid For Identification, Driving Privilege Only”

Illinois

 

Nov 28, 2013

Temporary Visitor Driver’s License

Labeled “TVDL” (instead of "Driver's License") and has blue stripe across top (rather than red stripe)

"Not valid for identification"

Maryland

 

Jan 1, 2014

Driver’s License

None

“Not acceptable for federal purposes. May not be used to purchase a firearm.”

Nevada

 

Jan 1, 2014

Driver Authorization Card

Labeled "Driver Authorization Card" (instead of "Driver License") and does not contain the REAL-ID gold star

"Not Valid for Identification"

Vermont

 

Jan 1, 2014

Operator's Privilege Card

Labeled "Driver's Privilege Card" (instead of Driver’s License), has red stripe, and does not contain the REAL-ID gold star 

"Not For Federal Identification" (with a red background stripe behind the language)

District of Columbia

May 1, 2014

Limited Purpose Driver’s License

None

 "Not for federal official purposes" (in the smallest font possible)  

 

States that have not yet begun to issue driving privileges

 

Colorado

Aug 1, 2014

Driver’s License

License will contain a distinguishable design (not yet determined)

“Not valid for federal identification, voting, or public benefit purposes.”

Oregon

 

Dec 4, 2014

Driver Card

Will be labeled "Driver Card" (instead of "Driver License") and will contain a distinguishing feature to be determined.

None

California

Jan 1, 2015

Driver’s License

Labeled “DP” (instead of “DL”)

“This card is not acceptable for official federal purposes. This license is issued only as a license to drive a motor vehicle. It does not establish eligibility for employment, voter registration, or public benefits.”

Connecticut

 

Jan 1, 2015

Motor Vehicle Operator's License

To be determined

License will indicate that it is not acceptable for federal identification purposes and also include the phrase: "for driving purposes only."

 

While the ideal bill would provide the same New Jersey driver’s license to all individuals, including the undocumented, this is politically unlikely, particularly in light of the impending deadline for states to comply with the federal REAL ID Act. REAL ID was passed in 2005 following concerns that several of the September 11 terrorists had obtained driver’s licenses or state identification documents. The law set minimum security standards for state-issued driver’s licenses and identification cards (including a requirement that recipients be U.S. citizens or possess a certain immigration status[1]). Once REAL ID is fully implemented, driver’s licenses that do not meet its standards will no longer be accepted by federal agencies for official federal purposes, such as entering a federal building or boarding a federally-regulated commercial airplane.

The REAL ID Act is not yet being enforced. The Department of Homeland Security has pushed back the deadline for state compliance numerous times since 2005. However, 21 states already issue driver’s licenses that meet REAL ID minimum standards and another 22 states have received an extension based on demonstrating that they are working to comply. To date, New Jersey has neither complied with the REAL ID license standards nor has it been granted an extension. However, New Jersey likely will work towards compliance within the next few years, which will require changes to the way it currently issues driver’s licenses to all residents. As a result, it may be politically difficult to pass a bill that simply extends access to the current driver’s license to the undocumented. Rather, New Jersey likely will opt to create a separate, non-REAL ID-compliant license that is marked “Not for Federal Identification” or with similar language. [2] New Jersey may wish to look into the path taken in Vermont, where residents have the option of choosing whether to apply for a REAL ID-compliant driver’s license or a non-compliant one, depending on personal preference or the inability or decision not to present the documents required to verify identity, citizenship, or lawful status in the U.S.

 

Section 2

Section 2 is a new section. 

 

Subsection a.

This subsection mandates the issuance of a driving privilege card (DPC) to applicants who meet all of the other requirements for a New Jersey driver’s license but cannot prove lawful U.S. citizenship. 

 

Analysis

This subsection, by using the phrase “cannot provide proof of lawful citizenship in the United States,” suggests that the standard New Jersey driver’s license is available only to U.S. citizens and the DPC is being created for all non-citizens.  In fact, there are a number of non-citizens with legal status (for example lawful permanent residents or other temporary visa holders) who can currently obtain driver’s licenses in New Jersey. Unless the intent of the bill is to require all non-citizens to apply for a DPC rather than a driver’s license, this language should be amended. Instead of referring to lawful U.S. citizenship, it should reference those who cannot prove legal presence in the U.S. or obtain a social security number. This is the distinction made by all other states who offer driving privileges to their undocumented residents.

 

Subsection b.

This subsection requires DPC applicants to provide proof of their identity, date of birth, and New Jersey residency. Among the acceptable documents to prove these three items are original or certified copies of:

  • a valid consular identification document or passport from the applicant’s country of citizenship
  • a birth certificate
  • a home utility bill, lease, or rental agreement
  • a marriage license or divorce certificate
  • a foreign federal electoral photo card
  • a foreign driver’s license
  • a Form I-589 application for asylum
  • an official school or college transcript
  • a Form I-20 or DS-2019 (for those in F-1 student status or J-1 exchange visitor status)
  • a deed or title to real property
  • a property tax bill or statement issued within the last year
  • an income tax return

The exact documents and combination of documents that will be acceptable are to be determined by MVC regulations adopted after the law’s enactment.

 

Analysis

This non-exhaustive list of acceptable documents is nearly identical to those enumerated in California’s driver’s license law and similar to those accepted in other states. Advocates will want to work closely with the MVC throughout the process of drafting and adopting regulations in order to ensure that the final list of acceptable documents is an inclusive as possible. If the DPC is intended to be the only licensing option available to all non-citizens (as mentioned above) then the list of acceptable documents will need to be expanded to include I-551 permanent resident cards (“green cards”) and other immigration status documents.      

 

Subsection c.

This subsection requires non-English documents presented to prove identity, date of birth, and residency to be accompanied by a certified translation or affidavit of translation. It also requires that DPC applicants either surrender any other state driver’s licenses they possess or affirm in writing that they do not possess any other driver’s license. Finally, applicants must also affirm in writing that they have no record of criminal history in New Jersey or anywhere else (including conduct in another state that would constitute an indictable crime in NJ).

 

Analysis

While the English translation requirement appears in other states’ driver’s license laws, it may be advisable to consult with departments of motor vehicles (DMVs) in those states about implementation before deciding whether to retain this requirement. In Nevada, applicants are required to use a DMV-approved translator from a list on its website – a requirement that has created challenges for many applicants. Connecticut’s law established a working group to study methods of verifying foreign documents and create an effective process for doing so. An alternative option would be to allow bilingual officials at the MVC to assess documents in the original language in lieu of mandating translation.

 

The requirement that DPC applicants surrender any other state driver’s licenses they possess or affirm in writing that they do not possess any other driver’s license could create problems. In Illinois, for example, there have been reports of the DMV pursuing fraud prosecutions against applicants who had applied for a license in the past using a false social security number. This is a real danger in New Jersey where applicants for standard driver’s licenses who have provided false documentation or made false statements may be found guilty of falsifying government records, a crime carrying a jail sentence of up to 18 months and/or a $1,000 fine.

 

The requirement that an applicant sign a statement attesting to not having a criminal record in New Jersey or anywhere else is problematic for various reasons. First, it does not define which New Jersey crimes (or convictions in other states) will be considered to constitute a criminal record. Asking MVC officers to make decisions about whether a given applicant has a record that would make him or her ineligible for a DPC would require complicated legal analysis that such employees may not be qualified to undertake. Finally, this is a wide-reaching ban. If New Jersey wishes to deny driving privileges to certain undocumented residents who present a danger to public safety, they could go the way of Connecticut, which denies the right to a license to undocumented drivers convicted of a felony in the state. No other state laws deny driving privileges to the undocumented on the basis of having a criminal record.  

 
Subsection d.

The MVC may charge an additional fee above and beyond the regular driver’s license application fees for the first five years of the DPC program.

 

Analysis

Other states also allow for an additional fee beyond the cost of the standard driver’s license in order to cover the costs of implementing the program. Advocacy with the MVC during the drafting of its regulations can help ensure that any additional application fee is reasonable and would not serve to deter potential applicants.   

 

Subsection e.

Applicants who provide false documentation or make a false statement on a DPC application will be guilty of falsifying government records under N.J.S. 2C:21-4 (a fourth degree crime which, following conviction, may result in up to 18 months of imprisonment and/or a fine of up to $1,000).

 

Analysis

This type of provision is not included in other states’ laws granting driving privileges to those without lawful status in the U.S. However, as mentioned above, criminal liability for providing fraudulent information to the New Jersey MVC extends uniformly to all applicants (including those for regular driver’s licenses and non-driver ID cards) so the law does not appear to be singling out undocumented drivers for exposure to criminal liability.

 

Section 3

Section 3 is also a new section.  

 

Subsection a.

This subsection provides that the DPC will be valid for 4 years from the date it is was issued.

 

Analysis

4 years is a reasonable validity period. The laws of other states provide driving privileges with a range of validity periods (1 year in Nevada and Utah; 2 years in Vermont; 3 years in Colorado, Connecticut, and Illinois; 4 years in New Mexico and Oregon; 5 years in California, Maryland, and Washington; and 8 years in DC).

 

Subsections b. and c.

Under subsection b, a DPC cannot be recognized as a form of identification by any public (state or local) officer, official, or employee. It may only be used to show that the holder is authorized to operate a motor vehicle in New Jersey.

 

Subsection c requires the MVC to adopt regulations about the form and design of the DPC. While its appearance must be similar to a driver’s license, it must contain conspicuous language similar to the following statement: This card entitles the person pictured to operate a motor vehicle. Not For Federal Identification Purposes. This card does not establish eligibility for employment, voter registration, or public benefits.

 

Analysis

 

Subsection c.

Let’s first consider subsection c. As explained above, only Washington and New Mexico offer undocumented residents the standard driver’s license available to individuals lawfully present in the country. All other jurisdictions offer licenses that are distinguishable by title, color, and/or design, and contain language limiting the use of the license. Because New Jersey will likely begin compliance with REAL ID in the near future, it may not be feasible to advocate for an unmarked license for the undocumented. However, it is worth pushing for the distinguishing features to be as minimal as possible.

 

It is REAL ID concerns that prompt states to place language on the licenses for undocumented drivers clearly stating that they are not acceptable for official federal purposes. As discussed above, REAL ID prohibits the federal government from accepting a state driver’s license for official federal use, unless that state has been found to verify the citizenship or lawful status of applicants prior to issuing them licenses. The exact phrasing on the non REAL ID-compliant licenses varies from state to state. The language in New Jersey’s bill most closely mirrors the language in California’s driver’s license bill. REAL ID concerns make it unlikely that New Jersey would pass a law that didn’t require a phrase similar to the one mandated by subsection c. 

 

Subsection b.

What is more concerning is subsection b which prohibits public employees (meaning employees of state or local agencies, not representatives of federal agencies) from recognizing the DPC as a form of identification. As a result, the MVC regulations may require including a phrase on the face of the DPC stating that the card is not valid as a form of identification. Advocates should push to remove from the bill any explicit restriction against DPC holders using the card to prove their identity to state or local officials. Residents of states where privilege cards permit driving but are not accepted as identification by state and local government have reported difficulties in picking up their children at school, reporting crimes to local law enforcement, establishing their identity to emergency responders, and engaging in other transactions with public officials. Moreover, preventing the DPC from serving as proof of a person’s identity may result in police taking DPC holders into custody for “identification” or fingerprinting. This, in turn, could easily lead to DPC holders being turned over to ICE and placed into immigration removal proceedings through ICE partnerships with local law enforcement, such as the Secure Communities program.

 

Section 4

Section 4 is also a new section.  

 

Subsection a.

This subsection provides that a DPC applicant’s personal information collected by the MVC is subject to the same restrictions on disclosure as information collected from driver’s license applicants.

 

Analysis

Inclusion of a data confidentiality provision is positive since DPC applicants deserve to have their personal information protected from disclosure just as applicants for standard driver’s licenses do.  However, the provision does not make any specific reference to protecting immigration status information. In light of the severe consequences of having one’s undocumented status revealed (including possible deportation), DPC applicants face heightened confidentiality concerns. In order to encourage undocumented drivers to come forward and apply for DPCs, New Jersey should assure potential applicants that information related to their immigration status will remain private. Other states’ laws contain confidentiality provisions that specifically protect information related to legal presence or immigration status. For example, Nevada’s law expressly prohibits its DMV from releasing any information related to legal presence or immigration status “to any person or to any federal, state or local governmental entity for any purpose related to the enforcement of immigration laws.” Washington D.C. prohibits the disclosure of information related to legal presence “except as necessary to comply with a legally issued warrant or subpoena.” A provision that explicitly protects immigration status information might encourage more undocumented New Jersey residents to decide to apply for a DPC.

 

Subsection b.

Subsection b makes discrimination against a DPC holder by a public official a crime of official deprivation of civil rights under N.J.S. 2C:30-6 (a third degree crime punishable by 3-5 years imprisonment and/or up to a $15,000 fine).

 

Analysis

Inclusion of an anti-discrimination provision in the bill is constructive. However, as a practical matter, it can be difficult to enforce laws prohibiting discrimination on the basis of the type of ID someone presents. If New Jersey is interested in providing additional protection against potential discrimination to DPC holders, it could consider California’s approach of prohibiting discrimination against license holders by private business establishments in addition to public entities.

 

Subsection c.

This subsection provides that a DPC “shall not be used to consider an individual’s citizenship or immigration status as a basis for a criminal investigation, arrest, or detention.”

 

Analysis

Again, the intent behind this section is positive – to protect undocumented individuals who possess or present a DPC against local law enforcement officers assuming that they are in the country without authorization or investigating, arresting, or detaining them based on their assumed immigration status. However, the wording of this section is confusing and needs to be changed. Washington D.C.’s driver’s license law provides that the license “shall not be used to consider an individual’s citizenship or immigration status, or as a basis for a criminal investigation, arrest, or detention” (emphasis added). California’s law provides its license “shall not be used as evidence of the holder’s citizenship or immigration status, and shall not be used as a basis for a criminal investigation, arrest, or detention in circumstances where a person with a driver license that was not issued under [this law] would not be criminally investigated, arrested, or detained” (emphasis added). New Jersey should edit the wording of this section to mirror one of these provisions.

 

Subsection d.

Four years after the law goes into effect, the MVC shall submit to the state a report evaluating the effectiveness of the DPC program, including data on the number of convictions for official deprivation of civil rights and for falsifying government records (without revealing the identify of specific individuals).

 

Analysis

This provision would ensure that the MVC monitors the law’s implementation during the initial 4 years. However, the requirement for the MVC to provide data on the number of public officials convicted of the crime of official deprivation of civil rights may present practical hurdles as it could be difficult to obtain this data from the New Jersey criminal court system. 

 

Section 5

Section 5 is a new section that requires the MVC to conduct a public education campaign about the availability of DPCs and the requirements for obtaining one.  

 

Analysis

This appears to be a positive provision but it is vague with respect to when the public education campaign would launch and how it would be funded.

 

Section 6

The bill will go into effect 7 months after its enactment.  

 

Analysis

It is worth considering whether 7 months is sufficient time to issue regulations and prepare for implementation, including capacity building of MVC staff, public education, etc.

 

Conclusion

Estimates of the number of undocumented immigrants in New Jersey range from 339,064[3] to 550,000[4] (the latter estimate represents approximately 6.2% of the state’s population and 8.6% of its workforce). Immigrant advocates have pointed out that “New Jersey is a car state” in which the availability of affordable, efficient public transportation is quite limited and the inability to drive can present major challenges to immigrants’ ability to access decent jobs. The benefits of extending driving privileges to all New Jersey residents, regardless of immigration status, are clear. CLINIC’s talking points provide a number of specific reasons to support licensing all drivers, including improvements to public safety on our roads, economic benefits, and the development of safer communities and stronger families.

In a perfect world, undocumented residents would be granted the right to a standard driver’s license rather than a marked license such as the one proposed in S1696. We are still in the process of learning about the unintended consequences of marked licenses for the undocumented, such as discrimination by individuals or selective law enforcement by officials. However, of the 11 states that have passed laws extending driving privileges to the undocumented, all but New Mexico and Washington offer licenses that are marked in some way. A distinguishable driver’s license that contains as minimal marking as possible and serves as a valid form of identification is a step in the right direction and will result in many benefits to New Jersey’s undocumented residents. Advocates can push for the document to be called (and labeled on its face) a “driver’s license” (identical to the standard license) rather than a “driving privilege card.” More importantly, they should work to minimize the appearance of the marked language (by utilizing small font size and no colored lettering or background) so that the license appears as similar as possible to the standard license. They should also work to strengthen the data confidentiality provision so that it explicitly protects information related to immigration status. Finally, they should ensure that the bill clarifies that it is for those who cannot prove legal presence in the U.S. rather than for all non-citizens.     

     

This document was prepared in April 2014 for informational purposes only and is not intended as legal advice. For questions, please contact CLINIC’s State & Local Advocacy Attorney Jen Riddle at (301) 565-4807 or jriddle@cliniclegal.org.




[1] Individuals with the following types of immigration status are eligible: lawful permanent residents; lawful temporary residents; conditional residents; refugees, asylees, and asylum applicants; nonimmigrants; those who have applied for or been granted temporary protected status; deferred action recipients; and those with pending adjustment of status applications. In contrast, individuals with the following types of lawful presence are not eligible for REAL ID-compliant licenses: individuals granted withholding of removal; humanitarian parole recipients; certain battered spouses/children, trafficking survivors, or Cuban/Haitian entrants; grantees of Family Unity or deferred enforced departure; applicants for cancellation of removal; and individuals under an order of supervision.  

[2] REAL ID is not a mandate and does not prevent states from issuing licenses to anyone.  It simply requires that state-issued driver’s licenses meet its criteria in order for the federal government to recognize those licenses for official federal purposes. REAL ID allows states to issue licenses that do not meet the REAL ID requirements so long as the licenses indicate that they are not acceptable for official federal purposes and are visually distinguishable from REAL ID-compliant licenses. 

[3] See August 2013 study by the Center for Applied Research in the Apostolate at Georgetown University based on U.S. Census Bureau and Department of Homeland Security statistics. The breakdown per diocese is as follows: Newark: 158,958; Trenton: 66,466; Metuchen: 47,546; Camden: 39,953; Paterson: 26,141. 

[4] See Immigration Policy Center, New Americans in New Jersey: The Political and Economic Power of Immigrants, Latinos, and Asians in the Garden State (May 2013), available at:  http://www.immigrationpolicy.org/just-facts/new-americans-new-jersey.

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Recent State & Local Immigration Developments (Apr 2013)

Philadelphia, Baltimore, and the Majority of Counties in Oregon Limit Local Police Involvement in Enforcing Immigration Laws

The list of localities that have adopted ICE detainer policies that enhance public safety and build trust between immigrant communities and police continues to grow. On April 16, the Mayor of Philadelphia signed an Executive Order restricting when city police will detain individuals to hand over to ICE for immigration enforcement. Philadelphia’s policy has been called “one of the most progressive in the country.” It prevents police from honoring an immigration detainer request unless the individual has been convicted of a violent felony and ICE has obtained a judicial warrant based on probable cause. This policy comes on the heels of last month’s Third Circuit Court of Appeals decision, holding that ICE detainers are merely requests and state and local law enforcement are not required to honor them.  

Under an April 18 policy, the Baltimore City Detention Center will only hold individuals for possible deportation by ICE when they have been charged with or convicted of a felony, three misdemeanors, or a “serious” misdemeanor.  In announcing the change, Maryland’s Governor O’Malley stressed the need to limit compliance with ICE detainers to cases where there is an actual public safety threat rather than separating families simply because Congress is unwilling to “reach a reasonable compromise on comprehensive immigration reform.” 

Finally, 23 of Oregon’s 36 counties have ceased honoring ICE detainers. These policies followed a federal court decision finding that Clackamas County sheriffs violated the Fourth Amendment rights of an Oregon immigrant they continued to hold for 19 hours after her state charges were resolved and she was eligible for release. The federal court agreed that immigration detainers are only requests and the mere existence of a detainer did not constitute probable cause permitting the County to continue to detain this individual. This ruling clarified that honoring ICE detainers may result in constitutional violations. Fears of legal liability may spur other cities and counties to adopt detainer policies such as those recently announced in Oregon, Baltimore, and Philadelphia. 

Click here for a comprehensive list of the states and localities that to date have limited compliance with immigration detainers and here for Talking Points on Why States Should Separate Local Policing From Immigration Enforcement.

 

Harboring Provision of Arizona’s SB 1070 Will Remain Blocked

On April 21, the U.S. Supreme Court declined to hear the appeal brought by the state of Arizona in Arizona v. Valle del Sol, Inc. This case involved the provision of SB 1070 that would have made it a state crime to encourage unauthorized immigrants to enter Arizona or to harbor or transport them within the state. Both the district court and the 9th Circuit Court of Appeals had prevented the provision from going into effect after finding that it was preempted by the federal law against harboring (8 U.S.C. §1324). The Supreme Court’s refusal to intervene is a relief for the parishes, teachers, social workers, and others who work regularly with immigrant communities in Arizona and may provide shelter or rides to many of its estimated 400,000 undocumented residents.   

 

Which Ten States Have the Largest Populations of Unauthorized Immigrants (According to DHS)?

The Department of Homeland Security (DHS) recently released statistics on the estimated number of unauthorized immigrants residing in the United States as of January 2012. According to the report, the total number of undocumented individuals in the country was 11.4 million. DHS also published the following estimates for the 10 states with the highest numbers of undocumented residents:

  1. California (2,820,000)
  2. Texas (1,830,000)
  3. Florida (730,000)
  4. New York (580,000)
  5. Illinois (540,000)
  6. New Jersey (430,000)
  7. Georgia (400,000)
  8. North Carolina (360,000)
  9. Arizona (350,000)
  10. Washington (270,000)

Virginia Attorney General Extends In-State Tuition Eligibility to DACA Recipients

 On April 29, the Attorney General of Virginia announced that young Virginians who were brought to the U.S. as children and have been recognized under the Deferred Action for Childhood Arrivals (DACA) program would no longer be treated as “international students” for college tuition purposes. Moving forward, these students may legally establish Virginia domicile and will be eligible for in-state tuition rates at Virginia’s public colleges and universities. State legislators in Virginia have introduced tuition equity bills for several years but such proposals have been unable to pass. Last year, a group of DACA recipients, who pay out-of-state tuition rates of 230% to 245% more than in-state rates at the Virginia community colleges, filed a lawsuit against the State Council of Higher Education. The change in Virginia tuition policy is being celebrated by the student plaintiffs. According to the Legal Aid Justice Center, which represented them in the legal challenge, “we continue to fight on the federal level for a path to full citizenship for these Virginia students and their families.” 

 


 

 

This document was prepared in April 2014 for informational purposes only and is not intended as legal advice. For questions, please contact CLINIC’s State & Local Advocacy Attorney Jen Riddle at jriddle@cliniclegal.org or (301) 565-4807.

Recent Immigration Developments from the States (Mar 2014)

Supreme Court Leaves Lower Court Decisions on Anti-Immigrant Housing Regulations Intact

On March 3, the U.S. Supreme Court declined to hear appeals brought by the towns of Hazelton, Pennsylvania and Farmers Branch, Texas related to their anti-immigrant housing ordinances. As a result, the decisions of the 3rd and 5th Circuit Courts of Appeals, finding that the housing ordinances were unconstitutionally preempted by federal immigration law, remain intact. Both ordinances would have required prospective tenants to prove their lawful presence in the United States and obtain a rental license before being permitted to rent an apartment. At this time, the only discriminatory housing ordinance that has withstood legal challenge is the policy that will go into effect on April 10 in Fremont, Nebraska. The 8th Circuit Court of Appeals upheld Fremont’s anti-immigrant rental ordinance last year and a majority of the town’s residents voted last month to keep the law. Fortunately, other localities across the country, including Omaha and Lincoln, Nebraska, are choosing instead to embrace and integrate immigrants into their communities and economies through a number of welcoming initiatives.        

 

Legal Settlement Blocks Key Sections of South Carolina’s 2011 Anti-Immigrant Law

Following in the steps of Arizona, Alabama, and Georgia, South Carolina is the latest state to limit enforcement of its harsh anti-immigrant law. The state has agreed to a settlement in legal challenges to key provisions of SB 20 that sought to criminalize undocumented immigrants and drive them out of the state. Once the settlement with civil rights organizations and the U.S. Department of Justice is approved by the federal court, it will limit how the state can enforce the law’s controversial “show me your papers” provisions which permit local police to request immigration status documents from individuals stopped or detained for other lawful reasons.  The South Carolina Attorney General issued a formal opinion clarifying that law enforcement agents cannot continue to hold people to investigate their immigration status after the original reason for stopping or detaining them has been resolved. The pending settlement will also permanently block the section of the law that makes it a state misdemeanor to fail to carry immigration documents. Finally, the settlement will permanently enjoin the provisions making it a state felony to engage in such routine interactions with undocumented immigrants as driving them to church or renting them a room. Similar provisions criminalizing transporting and harboring have also been blocked in Alabama and Georgia. 

 

Tuition Equity Bill Advances in Florida Legislature While Financial Aid Bill Is Defeated in New York

On March 20, the Florida House voted to approve HB 851 that would permit undocumented residents to pay in-state tuition at state universities. All eyes now turn to the state Senate where the Judiciary Committee recently approved a similar proposal (SB 1400) that must eventually clear the Senate as a whole.  Reports indicate that Governor Scott would sign the tuition equity bill, if passed by the legislature. If Florida does enact this legislation, it would become the 20th state with a law or policy extending in-state tuition to undocumented residents.  Only four of these states (California, New Mexico, Texas, and Washington) also permit undocumented students to qualify for state financial aid. New York, which has offered in-state tuition to undocumented residents since 2002, was considering a bill enabling undocumented students to qualify for state financial aid, but the legislation was defeated by the state Senate on March 17.  Click here for CLINIC’s Talking Points on Why States Should Offer In-State Tuition to All Residents.

 

Massachusetts May Become Third State to Decline to Hold Individuals for ICE

Massachusetts’ SB 1135, an Act to restore community trust in Massachusetts law enforcement, passed out of the Joint Public Safety Committee on March 19. This legislation would limit the use of scarce state and local law enforcement resources to do the federal government’s job of enforcing immigration laws. Specifically, Massachusetts law enforcement would only be able to hold someone under an ICE detainer when the individual is over 18, has been convicted of a certain felony, and has either been ordered removed or charged with being removable, and when ICE has agreed to reimburse the law enforcement agency for all associated costs. Recent ICE statistics show that an alarming percentage of individuals deported from Massachusetts as a result of federal partnerships with local law enforcement had no criminal convictions or had only been charged with minor offenses. According to the bill’s sponsor, it will limit “unjust, unnecessary, and unsafe federal deportation programs, therefore restoring the trust between immigrant communities and police, and increasing the public safety for all residents in Massachusetts.”  While the Maryland legislature had been considering similar legislation this session (HB 29/SB554), the Maryland Law Enforcement Trust Act failed to move out of the necessary House and Senate committees.

 

This document was prepared in March 2014 for informational purposes only and is not intended as legal advice. For questions, please contact CLINIC’s State & Local Advocacy Attorney Jen Riddle at jriddle@cliniclegal.org or (301) 565-4807.

 

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Welcoming the Stranger through Immigrant Integration (Sept 2013)

Welcoming the Stranger through Immigrant Integration discusses five state-level legislative initiatives that promote the integration of immigrants into our states and communities.  The integration measures discussed include legislation that creates tuition equity for all; strengthens human trafficking laws; invests in English language instruction; uses the budget process to integrate immigrants; and enhances access to financial aid and protection against immigration consultant fraud. The document includes model language and talking points that advocates can use to educate legislators about the benefits of integration measures.

 

 

 

Welcoming the Stranger through Immigrant Integration (PDF)

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Overview of State Resolutions in Support of Comprehensive Immigration Reform

Overview of State Resolutions in Support of Comprehensive Immigration Reform

     The climate in the states on immigration has changed noticeably over the past few years. After comprehensive immigration reform (CIR) failed to pass in 2007, states began enacting a patchwork of their own immigration measures. Arizona’s 2010 sweeping anti-immigrant law, for example, was followed by a series of copycat laws in other states as legislators focused on enforcement and making life for immigrants as difficult as possible. While state immigration enforcement bills continued to be introduced in 2012 and 2013, most lacked the traction to pass. 2013 has witnessed a marked shift towards pro-immigrant legislation as numerous states have passed laws to extend driving privileges and in-state tuition rates to the undocumented population. In addition, states have been sending the clear message to Congress that our broken immigration system needs comprehensive federal reform.

 

Click Here for the Full Overview (PDF)

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Latest Developments in State and Local Immigration Enforcement (Jul 2013)

Connecticut

On May 31, Connecticut’s State Legislature unanimously passed the Transparency and Responsibility Using State Tools (TRUST) Act, the country’s first state anti-detainer law designed to limit participation in the federal/state immigration enforcement partnership known as Secure Communities. Under Secure Communities, fingerprints taken by local police when booking an individual charged with a state or local crime are checked against federal immigration databases to see whether that individual might be removable from the U.S. If Immigration and Customs Enforcement (ICE) has reason to believe that the arrested individual may be removable, it can issue an immigration detainer requesting thatthe local law enforcement agency continue to hold that individual for up to 48 hours to give ICE a chance to place the person into immigration custody.  Secure Communities has resulted in the deportation of more than 272,000 immigrants, including many with no criminal history or who have only been charged with minor traffic offenses.   Connecticut’s TRUST Act limits the circumstances under which state and local police will hold immigrants for possible deportation by ICE.  The act permits state and local law enforcement to honor immigration detainers only when the requested individual has a felony conviction, is on a terrorist watch list, is a known member of a violent gang, already has an outstanding order of removal or deportation, or presents an unacceptable risk to public safety.  The bill is awaiting signature by the Governor of Connecticut and would go into effect on January 1, 2014.     

 

California

On May 16, 2013, the California State Assembly passed a similar bill also called the TRUST Act (AB 4).  The bill would permit local or state law enforcement officials to continue to hold an individual under an ICE immigration detainer only if the individual has been convicted of a serious or violent felony and his or her continued detention would not violate any federal, state, or local law or policy. The bill has moved to the State Senate where it awaits further discussion by the Public Safety Committee which will hold its next hearing on July 2, 2013. A version of California’s TRUST Act was passed by both houses in 2012 but vetoed by California Governor Jerry Brown. Over 96,800 Californians have been deported as a result of the Secure Communities program -- more deportations than from any other state.  Last December, California’s Attorney General instructed local law enforcement that participation in Secure Communities was optional given that the program increased distrust of police among immigrant communities and targeted non-criminal immigrants. California taxpayers spend an estimated $65 million each year detaining immigrants for ICE.  According to the TRUST Act’s sponsor and author, Assembly member Tom Ammiano, “Immigrants want to live in safe communities but when trivial issues such as selling tamales without a permit or having barking dogs…can turn into extended detention and deportation, confidence and trust between local law enforcement and immigrant communities is eroded…It doesn’t make sense to deport an undocumented Californian today who could be on the road to citizenship tomorrow.”  

 

Colorado

 On April 26, 2013, Colorado’s governor signed into law the Community and Law Enforcement Trust Act (HB 1258) which repealed a 2006 law (SB 90) requiring police to report to ICE those individuals in police custody who were suspected of being in the U.S. without authorization.  SB 90 had been blamed for inspiring the passage of Arizona’s SB 1070 and other state immigration enforcement laws.  According to the Colorado legislature, this new law will promote public safety by allowing police to build trust with immigrant communities – trust that SB 90 substantially undermined by creating fear of deportation among immigrant witnesses and victims who would otherwise have reported crimes.  Colorado law enforcement and public safety officials assert that community trust is essential for effective local policing and that this law will ensure equal protection and safety for all Coloradans including witnesses and victims of crime.  According to various local law enforcement agencies in Colorado, their time and resources are better spent protecting the public, as opposed to enforcing federal immigration laws.  The enactment of the Community and Law Enforcement Trust Act makes Colorado the first state in the country to repeal a “show me your papers" provision similar to those that are still in effect in Arizona (SB 1070), Alabama (HB 56), Georgia (HB 87), and South Carolina (SB 20).

 

North Carolina

 On April 10, 2013, North Carolina legislators introduced HB 786, the Reasonable Enactment of Comprehensive Legislation Addressing Immigration Matters (RECLAIM) Act.  The bill contains a provision similar to the “show me your papers” section of Arizona’s anti-immigration law SB 1070. The RECLAIM Act permits local law enforcement officials to check the immigration status of any individual they stop, detain, or arrest and who they have reasonable suspicion to believe is unlawfully present in the U.S.  This raises serious concerns about racial profiling by North Carolina law enforcement agents who lack immigration law training and might consider appearance or ethnicity in making such a determination.  The bill also requires undocumented drivers to obtain driving permits that would be marked to distinguish them from the driver’s licenses issued to other state residents. It also permits the police to immediately seize and sell the cars of individuals driving without a driver’s permit or car insurance, and requires the state to charge any undocumented immigrant in criminal custody for the costs of his or her incarceration.  The bill is currently under consideration by the House Finance Committee.  An estimated 325,000  undocumented immigrants reside in North Carolina and foreign-born workers comprise 9.9% of the state’s workforce.          

 

Arizona

 On May 24, 2013, a U.S. federal court found that Arizona Sheriff Joe Arpaio and the Maricopa County Sheriff’s Office (MCSO) engaged in a pattern of racial profiling against Hispanic drivers and passengers.  According to the decision, the MCSO used traffic stops as an excuse to identify and report individuals who are in the country without authorization and considered an individual’s Latino identity as a factor in determining whether to investigate that person’s immigration status.  The federal district court determined that Arpaio’s immigration enforcement policies and practices violate the U.S. Constitution’s Fourth Amendment (protection against unreasonable searches and seizures) and Fourteenth Amendment (equal protection), Title VI of the Civil Rights Act of 1964, and the Arizona Constitution.  Accordingly, the MCSO was ordered to stop using race or Latino ancestry as a factor in stopping vehicles or making law enforcement decisions related to whether an individual may be in the country without authorization.  The court is overseeing negotiations between the MCSO, the plaintiffs, and the Department of Justice (who filed a separate discrimination lawsuit  against the MSCO) to determine what

specific steps the MCSO needs to take to ensure compliance with the court’s order. The next hearing will be August 30, 2013. Hopefully, this ruling will serve as a deterrent, not only for Sheriff Arpaio, but for other local and state law enforcement agencies who are overstepping the bounds of their authority in the enforcement of federal immigration laws.  

Updated Resource for Community Advocates Concerned With ICE Partnerships with Local Law Enforcement 

 CLINIC has updated its tool kit that provides an overview of ICE partnerships with local law enforcement agencies including the Criminal Alien Program, the Secure Communities Program, and the 287(g) Program. The toolkit also recommends strategies for communities to advocate against the implementation and continuation of these programs.

 

This document was prepared in July 2013 by CLINIC’s State & Local Advocacy Attorney Jen Riddle. This document is provided for informational purposes only and is not intended as legal advice. For questions, please contact Jen Riddle at jriddle@cliniclegal.org or (202) 635-7410.

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Mandatory E-Verify Bills: An Analysis of South Dakota’s House Bill 1175 (Feb 2013)

Overview:  HB 1175 creates state-level penalties (suspending and revoking business licenses) for state employers who knowingly or intentionally hire undocumented workers; it also requires employers in the state to use E-Verify starting July 1, 2013.

 

Section 1

HB 1175 applies to any “employer” – an individual or a corporate entity – that transacts business in, and has been licensed by, the state of South Dakota.  It covers all employers of any size (even self-employed persons and independent contractors), though it does not cover situations in which an employer contracts for work of an independent contractor.  It defines other terms in the act as well.  

 Section 2

“No employer may knowingly or intentionally employ an unauthorized alien.”  Section 1 defines “intentionally” to mean that “a person’s objective is to cause that result or to engage in that conduct.”  Section 1 defines “knowingly employ an unauthorized alien” to be those actions that are described in the provision of the Immigration and Nationality Act pertaining to the “Unlawful Employment of Aliens” (8 U.S.C. 1324a) and instructs that the phrase be interpreted consistently with that provision.1  Finally, Section 1 defines “unauthorized alien” as someone who does not have the legal right to work under federal law (8 U.S.C. 1324(h)(3)).

 Sections 3 and 4

Sections 3 and 4 dictate that certain consequences for employers and unauthorized workers attach merely upon receipt of a complaint that an employer has violated Section 2.  All of the following actions take place before a court rules on whether an employee is in fact unauthorized and whether an employer has violated the act:

  • Check work authorization status: (Section 3) The county or state Attorney General (AG) must investigate all complaints that are filed on the prescribed complaint form, even if the complaint ends up being false or frivolous; in order to investigate, the AG must verify the alleged unauthorized worker’s work authorization with the federal government.  The AG has discretion to investigate complaints that are not filed on the prescribed complaint form – even completely anonymous complaints.  While Section 3 stipulates that the AG cannot investigate complaints based solely on race, color, or national origin, it is unclear how the AG would determine this. While Section 3 stipulates that a person who knowingly files a false or frivolous complaint is guilty of a Class 2 misdemeanor, nothing in Section 3 prevents even false or frivolous complaints from being investigated (meaning that the immigrant’s work authorization must still be checked with the federal government). 
  • Notify ICE and local police:  (Section 4) If the complaint is not determined to be false or frivolous, the AG must notify both ICE and local law enforcement of the unauthorized worker. 
  • Bring action against employer: (Section 4) If the complaint is not determined to be false and frivolous, the AG must bring action against the employer pursuant to Section 5.

 Section 5

Section 5 describes when and where legal actions against employers may be filed.  It further describes what conduct by an employer may properly constitute a second violation.

 Section 6

Section 6 describes consequences for employers for their first violation:

  • The employer must terminate the employment of all unauthorized workers and certify that this step has been taken.  This means that, upon a finding that an employer knowingly or intentionally hired one unauthorized worker, that employer must then re-examine the authorization of its entire workforce.  The employer must also certify that he or she will not knowingly or intentionally hire an unauthorized worker in the future.
  • If the employer will NOT so certify, the court must order state agencies to suspend all licenses held by the employer (Section 1 defines what constitutes a “license”).
  • Even if the employer takes all of the appropriate steps, the court may still consider ordering state agencies to suspend that employer’s licenses, depending on the nature of the violation.
  • The employer must be placed on probation for a period of time determined by the nature of the violation.

 Section 7

Section 7 describes consequences for employers for their second violation:

  • The court must order state agencies to permanently revoke all licenses held by the employer specific to the business location where the violation took place.

 Section 8

Section 8 lays out what conduct is considered a first and second violation.

 Section 9

Section 9 requires the attorney general to maintain copies of court orders finding first and second violations of this act and to make those copies publicly available on their website.  Section 9 also calls for the creation of a database of the employers and business locations that have committed a first violation.

 Section 10

Section 10 states that, in determining whether an employee is unauthorized, “the court shall consider only the federal government’s determination…”  Also, according to this section, verifying the employment authorization of an employee through the E-Verify program creates a rebuttable presumption that the employer did not violate the act.  Additionally, this section states that an employer who has acted in good faith to comply with the federal E-Verify procedures can use his/her good faith compliance as an affirmative defense that he/she did not violate the act.    

 Section 11

“Nothing in this Act requires an employer to take any action that the employer believes in good faith would violate federal or state law.”

 Section 12

Section12 mandates that all employers in the state use the E-Verify system for all new hires starting July 1, 2013.

 

Legal Analysis

It would be very hard to argue that HB 1175 is unconstitutional.  The text of HB 1175 is similar in almost every particular to a 2007 Arizona law called the “Legal Arizona Workers Act” (LAWA).  Last year, the U.S. Supreme Court upheld the constitutionality of LAWA.2 Challengers of the Arizona law argued that LAWA unconstitutionally stepped into the exclusively federal power to regulate immigration.  They also argued that LAWA would obstruct federal execution of federal immigration policies.

The majority of Justices on the Supreme Court disagreed.  LAWA’s business license penalty for employers is constitutional, they held, because it fits into a narrow and explicitly protected sphere for states to act to punish the employment of unauthorized workers.  Federal immigration law expressly prevents states from passing any law “imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ . . . unauthorized aliens.”3  Because LAWA revokes the business licenses of employers who hire unauthorized workers, the Court held that the law falls within this exception.

Nor is it unconstitutional, the Supreme Court held, for LAWA to mandate that employers in the state use the E-Verify system.  This mandate would not conflict with the overall scheme of federal immigration enforcement.  Critical to the Supreme Court’s analysis is the fact that LAWA relies wholly on federal determinations of an employee’s work authorization.  South Dakota’s HB 1175 contains identical language in this regard: Section 3 states that “A state, county or local official may not attempt to independently make a final determination on whether an alien is authorized to work in the United States.”  Section 10 further states that, in determining whether an employee is unauthorized, “the court shall consider only the federal government’s determination…”  Rather, HB 1175 mandates that work authorization be verified with the federal government. Thus, this Supreme Court decision opens the door for states to pass similar laws that penalize employers for employing unauthorized workers by revoking their business licenses and that mandate use of E-Verify.

 Policy Arguments

Notwithstanding the fact that HB 1175 is probably constitutionally sound, there are strong arguments that HB 1175 is not good policy. 

  • The bill is an unfunded mandate requiring local resources to be used in carrying out federal immigration enforcement. 

HB 1175 wastes limited AG and court resources.  HB 1175 states clearly that the AG must investigate all complaints, must notify the Department of Homeland Security and local law enforcement if the compliant is not false or frivolous, and must bring an action against the employer in state court if the complaint is not false or frivolous.  In addition, the AG must maintain copies of court orders that indicate that an employer has a first or second violation of the act and must place these orders on its website.  Thus, HB 1175 requires the AG’s office to expend considerable state resources on a myriad of immigration enforcement duties that fall within the purview of the federal government.  Not only do these additional duties burden taxpayers, but they take away from other important work carried out by the AG’s office such as prosecuting criminals, Medicare fraud, and consumer fraud.  Lastly, it is worth noting that these additional immigration duties are triggered by a complaint that can be made by anyone at any time.

  • Mandatory E-Verify without comprehensive federal immigration reform hurts children and their families hardest.  

In 2010, South Dakota was home to 22,238 immigrants, almost 41% of whom were naturalized U.S. citizens.  Unauthorized immigrants comprise less than 1.5% of the state’s workforce (or fewer than 10,000 workers), according to a report by the Pew Hispanic Center.   But 92% of the children of South Dakota’s 22,238 immigrants are U.S. citizens.4  Hurting the ability of South Dakota’s relatively small population of undocumented workers to provide for themselves and their families will have huge collateral consequences for lawful residents and U.S. citizens, and these consequences hit children hardest.

If one of these parents is deported, the emotional and financial damage to the family members left behind can be devastating.  Economic insecurity and health insecurity are documented consequences of increased enforcement of our currently broken federal immigration system.  Parents in immigration detention often face the loss of their parental rights while incarcerated, since they may not receive notice of court

proceedings, may not have adequate legal counsel,5 cannot comply with the terms of family reunification plans mandated by the child welfare system, and are often not even told where their children are.6  Children of undocumented immigrants suffer terribly as a result of the enforcement of our currently broken immigration laws.  The Urban Institute has shown that “Parent-child separations pose serious risks to children’s immediate safety, economic security, well-being, and longer term development.”7  The report continues:

 

Most families in our sample lost a working parent, because they were detained, deported, or released but not allowed to work. Following job loss, households experienced steep declines in income and hardships such as housing instability and food insufficiency. Many families experienced prolonged hardship in part due to extended efforts to contest deportation that took months and often more than a year to adjudicate.8

  • Mandatory E-Verify in South Dakota would discourage economic activity in the state.     

Unauthorized workers and their family members (who may be lawfully present or even citizens) are taxpayers, consumers, and entrepreneurs.  The Immigration Policy Center has shown that the 2010 purchasing power of Latinos in South Dakota totaled $548.5 millionan increase of 1,162.2% since 1990; Asian buying power totaled $260.4 million—an increase of 811.3% since 1990.  According to the Immigration Policy Center, “If all unauthorized immigrants were removed from South Dakota, the state would lose $190.5 million in economic activity, $84.6 million in gross state product, and approximately 1,440 jobs, even accounting for adequate market adjustment time, according to a report by the Perryman Group.”9  

Arizona’s LAWA went into effect on January 1, 2008.  Since that time, research has been done to study its effects.  According to the Center for American Progress, a Public Policy Institute of California report on Arizona’s experiences found evidence that LAWA “shifted many unauthorized immigrants in Arizona from the formal economy, where they pay income taxes, to the informal economy where they do not.”10 

  • The act provides several protections for employers but none for unauthorized workers.

HB 1175 has much more serious and immediate consequences for immigrant workers than it does for employers.  Employers get several safe harbors and affirmative defenses in HB 1175.  But for

immigrants, enforcement is immediate.  Simply upon receipt of a complaint that is not false or frivolous, ICE and local police automatically will be notified that a particular worker is unauthorized.  Under HB 1175, this enforcement process can be started by an anonymous complaint from any person (so long as it is not false or frivolous).   While Section 3 states that an AG may not investigate complaints that are based solely on race, color, or national origin, it is unclear how an AG would know that.   

  • The act will increase fear and distrust in immigrant communities.

This law turns neighbors into immigration agents.  This will significantly increase fear and distrust in immigrant communities in the state, and make it harder for police to do their job.  

  • Mandatory E-Verify imposes costs and implementation burdens that fall heavily on small businesses and on U.S. citizens who may be wrongly denied work because of errors.     

Please see our E-Verify fact sheet (attached to this analysis) for a discussion of the problems with E-Verify.  Among the problems discussed are the implementation burdens on businesses and the error rates that impact U.S. citizens.  Please also see the fact sheet (attached to this analysis) complied by the National Immigration Law Center in July 2011, “E-Verify: The Impact of Its Mandatory Use on South Dakota Workers and Businesses.”

 

 1 “(1) In general.— It is unlawful for a person or other entity…(A) to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien (as defined in subsection (h)(3)) with respect to such employment…” [emphasis added] 8. U.S.C. § 1234a(a)(1)(A).  This provision of the INA does not reference intentional hiring, but “knowingly” is broader than “intentionally”; the Legal Arizona Workforce Act, which the U.S. Supreme Court last year found to be constitutional, contained both “knowingly” and “intentionally” as well.  

2 Chamber of Commerce v. Whiting, 563 U.S. ___ (2011) http://www.supremecourt.gov/opinions/10pdf/09-115.pdf

3 Immigration Reform and Control Act, 8 U. S. C. §1324a(h)(2).

4 All of the above data comes from: Immigration Policy Center, “New Americans in South Dakota” (January 2012) http://www.immigrationpolicy.org/just-facts/new-americans-south-dakota  

5 National Immigrant Justice Center, Isolated in Detention: Limited Access to Legal Counsel in Immigration Detention Facilities Jeopardizes a Fair Day in Court (September 2010): 8-10.  The report found that several factors contributed to inadequate counsel for those in immigration detention including the geographic isolation of many detention facilities, inadequate phone access, and inadequate legal aid resources.

6 Women’s Refugee Commission, Torn Apart by Immigration Enforcement: Parental Rights and Immigration Detention [“WRC Report”] (December 2010): 1 http://www.womensrefugeecommission.org/programs/detention/parental-rights.

7 The Urban Institute, Children in the Aftermath of Immigration Enforcement (February 2010). http://www.urban.org/UploadedPDF/412020_FacingOurFuture_final.pdf  

8 Ibid. at vii-viv.

9 Immigration Policy Center, “New Americans in South Dakota” (January 2012) http://www.immigrationpolicy.org/just-facts/new-americans-south-dakota  

10 Philip E. Wolgin and Angela Maria Kelley, “Your State Can’t Afford It: The Fiscal Impact of States’ Anti-Immigrant Legislation” (July 2011): 5 http://www.americanprogress.org/issues/2011/07/pdf/state_immigration.pdf .

 

This document was prepared by CLINIC in January 2012 in response to the introduction of South Dakota’s HB 1238 into the state legislative assembly.   This same bill but with a different number, HB 1175, was introduced into the legislative assembly in 2013.  Karen A. Herrling has reviewed HB 1175 and has updated the analysis.  This document is for informational purposes only and is not intended as legal advice.  For questions, please contact CLINIC’s State & Local Advocacy Attorney Jen Riddle at jriddle@cliniclegal.org or (202) 635-7410.

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State Mandatory E-Verify Bill: An Analysis of Montana’s House Bill 297 (Feb 2013)

An Analysis of Montana’s House Bill 297 (2013)

Overview: This bill creates state-level penalties (suspending business licenses) for employers in Montana who knowingly hire undocumented workers; it also requires employers in the state to use E-Verify six months after the passage of the bill. 

 

Section 1:  Definitions

This bill applies to any “employer” – an individual or organization – that transacts business in, has been licensed by the state of Montana, and employs individuals that perform employment services in the state.  The term employer does not apply to an entity that hires an independent contractor.  It also does not apply to the occupant or owner of a private residence who hires casual, domestic labor to perform work customarily performed by a homeowner entirely within a private residence.  

Section 1 defines “knowingly employ an unauthorized alien” to be those actions that are described in the provision of the Immigration and Nationality Act (INA) pertaining to the “Unlawful Employment of Aliens” (8 U.S.C. 1324a) and instructs that the phrase be interpreted consistently with that provision.1

Section 1 states that the definition of “unauthorized alien” has the meaning provided in 8 U.S.C. 1324(h)(3).  

Section 1 defines other terms in the bill as well.

 

Section 2:  Mandatory E-Verify

The bill mandates that all employers in the state use the federal E-Verify program after making an offer of employment that has been accepted by an employee. Verification by employers must comply with federal law, 8 U.S.C. Section 1324a(b).    

 

Section 3:  Prohibition and Complaint Process 

Section 3(1) prohibits an employer from knowingly employing an unauthorized worker.  

Section 3(2) prescribes a complaint process whereby any person with actual or constructive knowledge that an employer employs or has employed an unauthorized worker (within a prescribed period of time), can file a complaint with the Montana Department of Justice [hereinafter “Department”].  Sections 3(3), 3(4) and 3(5) dictate that certain consequences for employers and unauthorized workers attach merely upon receipt of a complaint that an employer has knowingly employed an unauthorized worker.  All of the following actions take place before there is any adjudication on whether an employee is in fact unauthorized and whether an employer has violated the act:

  • The Department must notify the employer of the complaint.
  • The Department must direct the employer to notify any employee listed in the complaint that a complaint has been filed.
  • The Department must investigate the complaint,even if the complaint ends up being false or frivolous.

 

Section 3(4) further states that in order to investigate, the Department must verify the alleged unauthorized worker’s work authorization with the federal government.  While Section 3(2) stipulates that a person who knowingly files a false or frivolous complaint is guilty of a misdemeanor, nothing in bill prevents even false or frivolous complaints from being investigated.

Pursuant to Section 3(5), if the Department determines that the complaint is not false or frivolous, the bill mandates that the Department must carry out the following tasks:   

  • The Department must notify Immigration and Customs Enforcement (ICE) of the identity of the unauthorized worker. 
  • The Department must notify local law enforcement of the individual’s presence in the jurisdiction.
  • The Department must hold an administrative hearing where the employer can present evidence to address the allegations in the complaint.  

 

Section 3(6) states that an employer has not violated the act if the employer used the E-Verify program to determine if the employee has authorization to work.  Additionally, the bill gives employers the affirmative defense of  “good faith compliance” with federal immigration law to use in proceedings under this act.   

 

Section 4: Enforcement of the Bill 

This section sets forth the penalties for violating the act.  Among other things, the following must occur if an employer is found to have violated the act: (1) the Department must issue a cease and desist order, and (2) the employer must terminate the employment of all unauthorized workers and sign a sworn affidavit within 10 business days after the order has issued.    

If the employer will NOT file a sworn affidavit, the Department must order state agencies to suspend all licenses held by the employer.  The section further states that the licenses will be suspended until the required affidavit has been filed with the Department.  If an employer violates the act again within a 2-year period, the employer’s license must be suspended for 30 days or longer. 

Finally, this section requires the Department to maintain a database of the employers who have violated the act and the number and locations of the violations.

   

Section 5:  District Court Jurisdiction

This bill gives the district courts of Montana jurisdiction to decide challenges brought by employers or employees.  Montana district courts also have jurisdiction to enforce an order of the Department.  

 

Sections 6-12

These sections set forth other aspects of the bill.  Section 6 gives the Department the authority to establish procedures and guidelines to implement the act.  Sections 7, 8, 9, and 10 discuss construction, repeal of Montana Code Annotated 39-2-305, codification instructions, and severability.  According to Section 11, the act goes into effect 6 months after its passage and approval.  Section 12 provides that the Department cannot respond to a complaint against an employer for violations that occurred prior to the effective date of the act.   

 

Legal Analysis

Background on Federal Laws Regulating Employment of Unauthorized Workers

The federal Immigration Reform and Control Act of 1986 (IRCA) already prohibits most employers from knowingly hiring an individual who is not lawfully present or is not authorized to work in the United States.  IRCA sets up an extensive employment verification system, whereby it requires employers to review documents presented by new employees to establish their work eligibility and to report this information in the federal form I-9.2  IRCA further provides penalties and sanctions for employers who knowingly violate the law.3  Finally, IRCA expressly prevents states from passing any law “imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ . . . unauthorized aliens.”4 IRCA thus creates a comprehensive scheme for regulating the employment of unauthorized workers, with only one specific and narrow carve-out for limited state action.   

The paper-based I-9 system was the exclusive employment verification procedure under federal law until the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Pursuant to IIRIRA, Congress directed the Attorney General to establish three pilot programs to verify new employees’ eligibility for employment.  Of the three pilot programs, only the Basic Pilot Program (now called “E-Verify”) exists.  E-Verify is an internet-based system of employment verification.  It is merely one of the ways – and a new one at that – for an employer to meet its IRCA responsibilities.

 

Both IIRIRA and IRCA contain strong nondiscrimination provisions, prohibiting employers from using E-Verify or the I-9 process in a way that discriminates against employees based on their citizenship, immigration status, or national origin.5

 

Congress chose to make the E-Verify pilot program voluntary for most employers.  The one exception is federal contractors, who (pursuant to an Executive order and subsequent federal rule6) must use the E-Verify program in order to receive their contracts.  

         

Finally, IRCA creates a substantial “safe harbor” for employers who comply with the I-9 procedures.7  Unless an employer persists in violating IRCA after being put on notice of its noncompliance or engages in a pattern or practice of violations, employers who attempt to comply in good faith are protected from civil and criminal penalties under federal law.8

 

Application of the Bill 

The bill is likely constitutional.  The text of the bill is similar to a 2007 Arizona law called the “Legal Arizona Workers Act.”  Last year, the U.S. Supreme Court upheld the constitutionality of LAWA in Chamber of Commerce v. Whiting.9  Like this bill, LAWA suspends the state-issued business licenses of employers who are found to have knowingly hired unauthorized workers and creates a complaint procedure for challenging these employers.  Also like Montana’s bill, LAWA mandates that employers in the state use the E-Verify system.  

Those who challenged LAWA in court argued that the law unconstitutionally stepped into the exclusively federal power to regulate immigration.  They also argued that LAWA would obstruct federal execution of federal immigration policies.  

The majority of Justices on the Supreme Court disagreed.  LAWA’s business license penalty for employers is constitutional, they held, because it fits into a narrow and explicitly protected sphere for states to act to punish the employment of unauthorized workers.  Federal immigration law expressly prevents states from passing any law “imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ . . . unauthorized aliens.”10  Because LAWA revokes the business licenses of employers who hire unauthorized workers, the Court held that the law falls within this exception.  

Nor is it unconstitutional, the Supreme Court held, for LAWA to mandate that employers in the state use the E-Verify system.  Such a state law is not explicitly blocked by IIRIRA;11 nor would it conflict with the overall federal scheme regulating the employment of unauthorized workers.  Critical to the Supreme Court’s analysis of this last point was the fact that the consequences under LAWA for an employer of not

using E-Verify were the same as the consequences stated in IIRIRA: the employer can no longer avail himself of the rebuttable presumption that he complied with the law.    

Thus, this Supreme Court decision opens the door for states to pass similar laws that penalize employers for employing unauthorized workers by revoking their business licenses and that mandate use of E-Verify.

Policy Arguments

Notwithstanding the fact that the bill is probably constitutionally sound, there are strong arguments that the bill is not good policy.

1. The bill is an unfunded mandate requiring local resources to be used in carrying out federal immigration enforcement. 

 

This mandatory E-Verify bill requires Montana’s Department of Justice to expend considerable state resources on a myriad of immigration enforcement duties that fall within the purview of the federal government.  Pursuant to the bill, the Department must notify the employer of the complaint, must direct the employer to notify any employee listed in the complaint that a complaint has been filed, and must investigate the complaint,even if the complaint ends up being false or frivolous.  In addition, the Department must verify the alleged unauthorized worker’s work authorization with the federal government.  If the complaint is not false or frivolous, the Department must notify ICE of the identity of the unauthorized worker, must notify local law enforcement of the individual’s presence in the jurisdiction, must hold an administrative hearing where the employer can present evidence to address the allegations in the complaint, and must maintain a database of the employers who have violated the act.  Not only do these additional duties burden taxpayers, but they take away from other important work carried out by the Department such as prosecuting criminals, Medicare fraud, and consumer fraud.  Lastly, it is worth noting that these additional immigration duties are triggered by a complaint that can be made by anyone at any time.

2. Mandatory E-Verify in Montana would discourage economic activity in the state.     

Unauthorized workers and their family members (who may be lawfully present or even citizens) are important in Montana’s economy as taxpayers, consumers, and entrepreneurs.  The following are facts collected by the Immigration Policy Center: 

  • The 2010 purchasing power of Latinos in Montana totaled $650.3 million—an increase of 661 % since 1990. Asian buying power totaled $219.4 million—an increase of 451.5% since 1990.  Additionally, Latino and Asian entrepreneurs added millions of dollars and thousands of jobs to Montana’s economy.
  • If unauthorized immigrants were removed from Montana, the state would lose 96.3 million in economic activity, 42.8 million in gross state product and approximately 720 jobs, even accounting for adequate market adjustment time, according to a report by the Perryman Group.

Arizona provides the clearest test case for state employer sanctions proposals.  LAWA has been costly for Arizona.  It has not stopped unauthorized work but has simply grown the size of the cash-based, underground economy.  In 2008, the first year LAWA was in effect, income tax collection dropped 13% from the year before.12

3. Mandatory E-Verify is costly, particularly for small businesses.  

To comply with the bill, individual employers will need to dedicate staff to understand the requirements of the proposed law and to implement E-Verify.  These employers may need to make upgrades in hardware or software in order to access E-Verify.  Additionally, program administrators and other users are required to complete training and periodic refresher training courses on the use of E-Verify.  

Small businesses, which create most of the nation’s new jobs, cannot afford to set up and use E-Verify, especially at this time when the economy is still fragile. Unlike large companies, they lack human resources departments to help their employees resolve E-Verify errors.13 According to the National Immigration Law Center, small businesses would face the biggest impact from mandatory E-Verify laws.  Nationally, data shows that if use of E-Verify had been mandatory in fiscal year 2010, it would have cost small businesses $2.6 billion.14 In 2011, the Main Street Alliance, a national network of small business owners, wrote to House Judiciary Committee Chairman Lamar Smith to oppose his mandatory E-Verify proposal.15    

4. Mandatory E-Verify without comprehensive federal immigration reform hits children and families hardest.  

In 2010, Montana was home to 20,031 immigrants.  Of this number, over 57%  or 11,506 people were naturalized U.S. citizens.  Unauthorized immigrants comprise less than 1% of the state’s workforce (or fewer than 10,000 workers), according to a report by the Pew Hispanic Center.   But 97.6% of the children of Montana’s immigrants were U.S. citizens in 2009.16  Hurting the ability of Montana’s relatively small population of undocumented workers to provide for themselves and their families can have huge collateral consequences for lawful residents and U.S. citizens, and these consequences hit children hardest.

If one of these parents is deported, the emotional and financial damage to the family members left behind can be devastating.  Economic insecurity and health insecurity are documented consequences of increased

enforcement of our currently broken federal immigration system.  Parents in immigration detention often face the loss of their parental rights while incarcerated, since they may not receive notice of court proceedings, may not have adequate legal counsel,17 cannot comply with the terms of family reunification plans mandated by the child welfare system, and are often not even told where their children are.18  The Urban Institute has shown that “Parent-child separations pose serious risks to children’s immediate safety, economic security, well-being, and longer term development.”19  The report continues:

Most families in our sample lost a working parent, because they were detained, deported, or released but not allowed to work. Following job loss, households experienced steep declines in income and hardships such as housing instability and food insufficiency. Many families experienced prolonged hardship in part due to extended efforts to contest deportation that took months and often more than a year to adjudicate.20

5. This bill will increase fear and distrust in immigrant communities.

This law turns neighbors into immigration agents.  This will significantly increase fear and distrust in immigrant communities in the state, and make it harder for police to do their job.  

 

Please see our E-Verify fact sheet for a discussion of the problems with E-Verify.  Please also see the fact sheet (attached to this analysis) complied by the National Immigration Law Center in July 2011, “E-Verify:  The Impact of Its Mandatory Use on Montana Workers and Business.”    

 

1 “(1) In general.— It is unlawful for a person or other entity…(A) to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien (as defined in subsection (h)(3)) with respect to such employment…” [emphasis added] 8. U.S.C. § 1234a(a)(1)(A).

2 8 U.S.C. Section 1324a(b); 8 C.F.R. Section 274a.2(b).

3 United States Government Accountability Office, “Employment Verification: Federal Agencies Have Taken Steps to Improve E-Verify, but Significant Challenges Remain,” [GAO Report] December 2010.

4 Immigration Reform and Control Act, 8 U. S. C. §1324a(h)(2).

5 GAO Report; see also Brief of Amicus Curiae Asian American Justice Center, a member of the Asian American Center for Advancing Justice, et. al., in Support of Petitioners, Chamber of Commerce v. Whiting, p. 16-17

6 73 F.R. 67651-705 (Nov. 14, 2008).

7 8 U.S.C. Section 1324a(b)(6)(A).  

8 8 U.S.C. Section 1324a(b)(6).  

9 Chamber of Commerce v. Whiting, 563 U.S. ___ (2011) http://www.supremecourt.gov/opinions/10pdf/09-115.pdf

10 8 U.S.C. Section 1324a(h)(2).

11 The Supreme Court noted that IIRIRA includes only one specific restriction regarding laws that would make E-Verify mandatory: the Secretary of the U.S. Department of Homeland Security must receive Congressional authorization before making the E-Verify program mandatory for any entity outside of the federal government.

12 National Immigration Law Center, “Costly and Ineffective: What Arizona’s Experience with Mandatory E-Verify Teaches Us,” May 2011 http://www.nilc.org/costsev.html  (citing Daniel Gonzalez, “Illegal Workers Manage to Skirt Ariz. Employer-Sanctions Law,” The Arizona Republic, Nov. 30, 2008, www.azcentral.com/news/articles/2008/11/30/20081130underground1127.html  ).  

13 National Immigration Law Center, “E-Verify Creates Burdens for Small Businesses” (June 2011) http://www.immigrationworksusa.org/uploaded/file/E-Verify%20burdens%20small%20business.pdf  

14 Statement of Tyler Moran, Policy Director, National Immigration Law Center, House Committee on the Judiciary, Subcommittee on Immigration Policy and Enforcement, Hearing on: "E-Verify- Preserving Jobs for American Workers," February 10, 2011, pp. 3-4 http://www.nilc.org/testimony-eevs.html.

15 http://mainstreetalliance.org/wp-content/uploads/2011/09/MSA-letter-to-House-Judiciary-Committee-on-HR-2885-Sept-14-2011.pdf 

16 All of the above data comes from: Immigration Policy Center, “New Americans in Montana” (January 2012) http://www.immigrationpolicy.org/just-facts/new-americans-montana   

17 National Immigrant Justice Center, Isolated in Detention: Limited Access to Legal Counsel in Immigration Detention Facilities Jeopardizes a Fair Day in Court (September 2010): 8-10.  The report found that several factors contributed to inadequate counsel for those in immigration detention including the geographic isolation of many detention facilities, inadequate phone access, and inadequate legal aid resources.

18 Women’s Refugee Commission, Torn Apart by Immigration Enforcement: Parental Rights and Immigration Detention [“WRC Report”] (December 2010): 1 http://www.womensrefugeecommission.org/programs/detention/parental-rights.

19 The Urban Institute, Children in the Aftermath of Immigration Enforcement (February 2010). http://www.urban.org/UploadedPDF/412020_FacingOurFuture_final.pdf  

20 Ibid. at vii-viv.

 

 

 

 

This document was prepared for CLINIC in February 2013 by Karen A. Herrling.  This document is for informational purposes only and is not intended as legal advice.  For questions, please contact CLINIC’s State & Local Advocacy Attorney Jen Riddle at jriddle@cliniclegal.org or (301) 565-4806.

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Montana Prohibition Against Sanctuary Policies: A Legal and Policy Analysis (January 22, 2013)

Overview

House Bill (HB) No. 50, introduced by State Representative David Howard, prohibits local government from enacting, adopting, implementing, enforcing, or referring to the electorate immigration sanctuary policies.  It also allows state agencies to withhold funds to local governments that do not comply with the provisions of the bill.  Additionally, a person domiciled in Montana can seek a writ of mandamus to compel compliance with the bill. 

In general, bills or laws like HB 50 are introduced as a response to “sanctuary cities,” which refer to localities that are perceived to have adopted policies that limit local officials’ involvement in the business of enforcing federal immigration law.  For instance, in recent years, some localities concerned with upholding strong community policing programs have adopted policies prohibiting their police officers from asking questions about an individual’s immigration status.  Other localities have attempted to “opt out” of the federal Secure Communities program (when that was still an option).  Still other localities have decided to restrict the authority of local police to honor federal immigration detainers.  

It appears from the language of the bill and from comments made by Representative Howard that the intent of HB 50 is to have police officers and local and state officials inquire about immigration status and enforce immigration law.  Indeed, Representative Howard told the Montana Judiciary Committee that HB 50 “ensures local governments will enforce immigration law and not turn a blind eye to undocumented immigrants.”1

Analysis  

HB 50 is unnecessary.  Two provisions of federal law already prohibit all government entities (including state and local government entities) from restricting communication between state/local government entities/officials and the federal Department of Homeland Security (DHS) regarding the immigration status of any individual.  First, 8 U.S.C. §1644 (part of the Personal Responsibility and Work Opportunity Act or “PRWORA”) states: “Notwithstanding any other provision of Federal, State, or local law, no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from the Immigration and Naturalization Service information regarding the immigration status, lawful or unlawful, of an alien in the United States.”  

Second, 8 U.S.C. §1373 (part of the Illegal Immigration Reform and Immigrant Responsibility Act or “IIRAIRA”), enacted a month after PRWORA, borrows and expands on the above language:

  1. In general – Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.
  2. Additional authority of government entities – Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual:
    • Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service.
    • Maintaining such information.
    • Exchanging such information with any other Federal, State, or local government entity.

In summary, because the two federal laws listed above already prohibit all state and local government entities from restricting communication between DHS officials and state and local government officials, HB 50 is superfluous.   

Additionally, bills such as HB 50 can burden state resources because they require local agencies to take on federal enforcement duties.  This mandate means that state and local agencies that are already facing economic challenges may need to devote much needed resources to perform new and different duties.  It also may mean that state and local personnel will require additional training and professional development opportunities to handle any new tasks.  Lastly, it may mean that important duties that were previously performed by state and local officials simply cannot be done because of lack of time and resources.  Thus, having state and local agencies enforce federal immigration law does not make economic sense, particularly in a state like Montana with a small foreign-born population where Hispanics make up just 3 percent of the population.  

Interestingly, important guidance can be gleaned from the Texas State Legislature.  Toward the end of 2011, Texas battled over proposed anti-sanctuary cities bills in both the House and the Senate.  The effort to pass legislation of this type ultimately was undone by opposition from influential Republican donors as well as evangelical Christian leaders.  The anti-sanctuary cities bills were considered by these groups to be “unfunded mandates” requiring local agencies to use local resources in carrying out federal immigration enforcement.  Similar to HB 50, the bills would have put local governments at risk of losing state grant money if they did not comply.2  

Also, having local police enforce federal immigration law by complying with HB 50 can compromise the safety of everyone, including citizens.  Bills such as HB 50 often force local police to shift their focus and resources toward immigration enforcement.  The devastating effect of this realignment is most evident in Maricopa County, Arizona.  The U.S. Department of Justice continues to examine the failure of the Maricopa County Sheriff’s Office to investigate over 300 cases of sexual assault and child molestation while the office shifted its resources toward federal immigration enforcement.3  

Moreover, bills like HB 50 also further incentivize over-enforcement of the law, because officers do not wish to be accused of not complying with the state mandate and, in the case of HB 50, become the subject of a writ of mandamus.  The over-enforcement of the law can lead to the violation of civil rights and liberties of residents throughout Montana.  It also can harm the welfare of communities.  Indeed, how will HB 50 impact individuals that need to interact with state and local agencies, such as schools, hospitals, libraries, police departments, and social service offices?  Will this bill deter people from seeking help from their local fire department? Will the victim of a crime or a witness to a crime decide not to report a crime or assist in an investigation?  Will a person decide not to call 411 in an emergency?  Will this bill deter people from getting vaccinations?       

Not surprising, law enforcement leaders from Texas4 to California5 to Utah6 to Massachusetts7 have spoken out about the damage that immigration enforcement-only approaches can do to community policing programs.  Kenneth E. Lavallee, Police Chief of Lowell, Massachusetts, aptly stated that:  “When immigrant residents of Lowell are afraid to report crimes because they worry that contact with my officers could lead to deportation, criminals are allowed to roam free and the entire community suffers as a result.”8 Fear erodes the important element of trust between the police and the communities they serve. The erosion of trust impacts immigrant women particularly harshly. 9 Among other things, it renders them helpless in the face of domestic violence.

Steven Anderson, police chief in Tuscaloosa, Alabama, told This American Life that getting police into immigration enforcement is a waste of resources – that he has real crime to root out in Tuscaloosa, and “[t]he Hispanic population was not the population in our community that was committing those crimes. So immigration was not a problem for our police department. It was not in my top 10, maybe not even in my top 20, of concerns that I had for the city of Tuscaloosa.”10  

Further, Section (2) of HB 50 allows a person domiciled in Montana to bring a writ of mandamus to compel compliance by state and local government entities.  This section is onerous and, as noted above, can provide the impetus for state and local officials to over-enforce federal immigration law.  It also has the potential of burdening the court system and wasting the resources of local and state governments and their agencies.   

Lastly, HB 50 runs counter to trends across the nation that have shown a more moderate approach to immigration enforcement by both federal and state officials.  Immigration reform remains a top priority of President Obama during his second term.  House Speak John Boehner has said that he would consider proposals for comprehensive immigration reform.  At the state legislature level, fewer immigration-related bills were introduced and became legislation in 2012.         

 

 1 Elizabeth Llorente, “Immigration Enforcement Law Proposed in Montana,” Fox News Latino, January 16, 2013. http://latino.foxnews.com/latino/politics/2013/01/16/immigration-enforcement-law-proposed-in-montana/ 

2 Zahira Torres, “Texas legislature: Bill banning sanctuary cities headed toward failure,” El Paso Times, June 28, 2011 http://www.elpasotimes.com/ci_18362079  

3 U.S. Department of Justice, Civil Rights Division, “United States Investigation of the Maricopa County Sheriff’s Office,” December 15, 2011 http://www.justice.gov/crt/about/spl/documents/mcso_findletter_12-15-11.pdf  

4 A. Elena Lacayo, “One Year Later: A Look at SB 1070 and Copycat Legislation,” National Council of La Raza (April 18, 2011) [“Lacayo, “One Year Later”]: 5 (quoting Sheriff Richard Wiles of El Paso, TX: “if the people who live in our community are afraid to talk to us, they won’t report crimes when they’re victims or witnesses.”). 

5 The San Jose, CA Police Department released a statement approving the San Jose City Council’s policy of putting community policing before immigration enforcement. Here is the section of the City Council’s policy quoted and approved by the Police Department:  The City of San Jose has a strong interest in assuring that legal and undocumented immigrants do not fear interacting with their local governmental authorities. In past years, the City has seen how the reluctance of immigrants to interact with local authorities can critically undermine the health and safety of our community. For example, the failure of victims to report crimes, the reluctance of witnesses to cooperate with the police, or the unwillingness of parents to take children to school or to a health clinic, can have grave impacts on the well-being of all of San Jose's residents, including U.S. citizens. http://www.sjpd.org/inews/viewPressRelease.asp?ID=430

6 Lacayo, “One Year Later,” at 5 (quoting Utah Attorney General Mark Shurtleff: “local law enforcement resources should focus on criminal activities, not civil violations of the federal code.”)

7 Immigration Policy Center Special Report: Debunking the Myth of “Sanctuary Cities:” Community Policing Policies Protect American Communities (April 2011): http://www.immigrationpolicy.org/sites/default/files/docs/Community_Policing_Policies_Protect_American_042611_update.pdf  

8 Immigration Policy Center Special Report: Debunking the Myth of “Sanctuary Cities:” Community Policing Policies Protect American Communities (April 2011): 6 http://www.immigrationpolicy.org/sites/default/files/docs/Community_Policing_Policies_Protect_American_042611_update.pdf  

9 Witness, for example, the February 10, 2011 testimony of Antonia Peña, a volunteer with Casa de Maryland, before an Ad Hoc Congressional Hearing hosted by Representative Raúl Grijalva (D-AZ).  Ms. Peña recounted the story of her friend, Maria, a Salvadoran mother living in Maryland who is now in removal proceedings because she called the police for help against a domestic attack. See U.S. Congress. Ad Hoc Congressional Hearing hosted by Representative Raúl Grijalva. “Emerging Issues in Ending Violence Against Immigrant Women.” Testimony of Antonia Peña, Volunteer with Casa de Maryland. February 10, 2011. http://www.huffingtonpost.com/rep-raul-grijalva/immigrants-need-the-viole_b_822424.html ; http://www.youtube.com/watch?v=zuLHUJa6Pf0   Such stories of victims being further victimized by the immigration system are not hypothetical.  They are real and documented.  

10 This American Life, “Reap What You Sow,” aired January 27, 2012 http://www.thisamericanlife.org/radio-archives/episode/456/transcript  

 

This document was prepared for CLINIC in January 2013 by Karen A. Herrling.  This document is for informational purposes only and is not intended as legal advice.  For questions, please contact CLINIC’s State & Local Advocacy Attorney Jen Riddle at jriddle@cliniclegal.org or (202) 635-7410.

Resources by type: 

Overview of State Resolutions in Support of Comprehensive Immigration Reform (Sept 2013)

States Voice Support for Federal Immigration Reform 

Download as PDF

Overview of State Resolutions in Support of Comprehensive Immigration Reform 

The climate in the states on immigration has changed noticeably over the past few years.  After comprehensive immigration reform (CIR) failed to pass in 2007, states began enacting a patchwork of their own immigration measures.  Arizona’s 2010 sweeping anti-immigrant law, for example, was followed by a series of copycat laws in other states as legislators focused on enforcement and making life for immigrants as difficult as possible. While state immigration enforcement bills continued to be introduced in 2012 and 2013, most lacked the traction to pass. 2013 has witnessed a marked shift towards pro-immigrant legislation as numerous states have passed laws to extend driving privileges and in-state tuition rates to the undocumented population.  In addition, states have been sending the clear message to Congress that our broken immigration system needs comprehensive federal reform.  

The following summary captures most of the CIR resolutions introduced or passed by states during the 2013 legislative session with links to the text of each resolution. These resolutions speak persuasively about the need for federal immigration reform and contain specific references to immigrants’ many contributions to the social and economic fabric of the state, its communities, and its families.  Upon passage, resolutions are typically forwarded to the President of the United States, leaders of the Senate and House of Representatives, and members of the states’ Congressional delegations. CLINIC hopes that the principles and statements contained in the below resolutions may inform your own immigration advocacy with state and national actors.

STATE RESOLUTIONS INTRODUCED1

Arizona: SR 1001 was introduced in the Senate on January 23, 2013.2

Georgia: HR 912 was introduced in the House on March 26, 2013.3

Hawaii: HCR 67 and HR 51  were offered in the House on March 8, 2013.4

Missouri: SCR 10 was offered in the Senate on February 19, 2013. 5

New York: K 485 was introduced in the Assembly on May 23, 2013.6

North Carolina: HR 627 was filed in the House on April 9, 2013.7

Oklahoma: HR 1014 was introduced in the House on April 4, 2013.8

Oregon: HJM 11 was introduced in the House on February 25, 2013.9

TexasHCR 44 was filed in the House on February 13, 2013.10SCR 15  was introduced in the House on February 13, 2013.11  

 

STATE RESOLUTIONS THAT PASSED AT LEAST ONE CHAMBER:

Florida: S 816  was adopted by the Senate on April 26, 2013. 12

New Mexico: SJM 52  was passed by the Senate on March 15, 2013.13

 

STATE RESOLUTIONS THAT PASSED BOTH CHAMBERS:

California: AJR 3 was adopted by the Assembly on May 6, 2013, amended and passed by the Senate on July 1, 2013, and returned to the Assembly where it remains pending.14

Colorado: SJM 13-003 passed in the Senate on April 24, 2013 and in the House on May 7, 2013.15

Illinois: Identical resolutions HR 0377  and SR 0328  were adopted by the Senate on May 23, 2013 and by the House on May 31, 2013.16

Maine: SP 550  was adopted by the House and the Senate on April 30, 2013.17

Nevada: SJR 15  passed the Senate on April 3, 2013 and the Assembly on April 30, 2013.18

New Jersey: Identical bills SR 95 and AR 142 passed the Senate on March 18, 2013 and the Assembly on March 21, 2013. 19

 

In addition to state resolutions, countless city councils across the country have passed resolutions in support of CIR including Boston, MA; Tucson, AZ; El Paso, TX; Seattle, WA; and Anaheim, CA.20 In Kansas, a group of thirty-two mayors wrote a letter to the state’s congressional delegation urging them to adopt immigration reform including “reasonable access to citizenship.”21  

 

This update was prepared in July 2013 by CLINIC’s State & Local Advocacy Attorney Jen Riddle and Advocacy Intern Ashton Hupman. For questions, please contact Jen Riddle at jriddle@cliniclegal.org or (301) 565-4807.

 

1 These resolutions were introduced but either failed to pass or remain pending in committee at the time of writing.   

2 http://www.azleg.gov/DocumentsForBill.asp?Bill_Number=SR1001&Session_ID=110

3 http://www.legis.ga.gov/Legislation/en-US/display/2013_14/40281

4 http://capitol.hawaii.gov/measure_indiv.aspx?billtype=HCR&billnumber=67&year=2013; http://capitol.hawaii.gov/measure_indiv.aspx?billtype=HR&billnumber=51&year=2013 

5 http://www.senate.mo.gov/13info/BTS_Web/Actions.aspx?SessionType=R&BillID=18645843

6http://assembly.state.ny.us/leg/?default_fld=&bn=K00485&term=2013&Summary=Y&Actions=Y&Votes=Y&Memo=Y&Text=Y

7 http://www.ncga.state.nc.us/gascripts/BillLookUp/BillLookUp.pl?Session=2013&BillID=H627

8 http://www.oklegislature.gov/BillInfo.aspx?Bill=HR1014 

9 https://olis.leg.state.or.us/liz/2013R1/Measures/Overview/HJM11

10 http://www.capitol.state.tx.us/BillLookup/History.aspx?LegSess=83R&Bill=HCR44

11 http://www.capitol.state.tx.us/BillLookup/history.aspx?LegSess=83R&Bill=SCR15

12 http://flsenate.gov/Session/Bill/2013/0816

13 http://www.nmlegis.gov/lcs/legislation.aspx?Chamber=S&LegType=JM&LegNo=52&year=13

14 http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140AJR3&search_keywords=

15 http://openstates.org/co/bills/2013A/SJM13-003/; http://www.leg.state.co.us/clics/clics2013a/csl.nsf/fsbillcont2/E8D99B280BA2CA2187257B4000524BDB?Open 

16http://ilga.gov/legislation/BillStatus.asp?DocNum=328&GAID=12&DocTypeID=SR&LegId=76437&SessionID=85&GA=98; http://ilga.gov/legislation/BillStatus.asp?DocNum=377&GAID=12&DocTypeID=HR&LegId=76426&SessionID=85&GA=98 

17http://openstates.org/me/bills/126/SP550/;http://www.mainelegislature.org/LawMakerWeb/summary.asp?paper=SP0550&SessionID=10 

18 http://www.leg.state.nv.us/Session/77th2013/Reports/history.cfm?ID=1137

19 http://www.njleg.state.nj.us/bills/BillsByNumber.asp

20 http://anaheimblog.net/2013/04/23/anaheim-ciity-council-approves-immigration-reform-resolution/; http://immigration-reform-issues.blogspot.com/2011/10/washington-state-leads-effort-on.html ; http://baystatebanner.com/news/2013/jun/19/boston-city-council-passes-resolution-supporting-f/ ; http://immigrationimpact.com/2013/03/01/immigration-policy-in-the-states-a-roundup/ ; http://www.seiu.org/2013/06/momentum-members-and-allies-mobilize-for-immigrati.php

21 http://www.kansascity.com/2013/08/14/4411405/in-a-letter-32-kansas-mayors-urge.html

State In-State Tuition Bills An Analysis of the Amendment to New Hampshire’s House Bill 474 (2013)

Legislators in New Hampshire have introduced HB 474 and an Amendment to HB 474 that extends in-state student status to individuals without lawful status.  As shown below, HB 474 standing alone is more generous than it would be with the Amendment.  That said, HB 474 still provides an avenue for students without lawful status to gain in-state student status in New Hampshire’s post-secondary education system.   

Overview of HB 474:

HB 474 adds language to existing New Hampshire law regarding the in-state status of students enrolled in the state’s university system.  In general terms, HB 474 allows students who currently do not have lawful status to get in-state student status by submitting an affidavit that states that they have filed or will file an application to legalize their immigration status when they become eligible.  The language of section (b) of the bill is as follows:

… the board of trustees shall permit a student who is without lawful immigration status and files an affidavit with the institution to which the student is applying stating that he or she has filed an application to legalize his or her immigration status, or will file such application as soon as he or she is eligible, and who meets all other criteria for in-state status, to be granted in-state status.  The affidavit and all other information required in this subparagraph shall be considered education records and shall be exempt from the provisions of RSA 91-A. (bold added for emphasis).           

HB 474 broadens current law by extending in-state status to students who “will file an application [to legalize status] as soon as he or she is eligible….”  Thus, this bill would allow all eligible students to qualify for in-state status, regardless of their current immigration status.     

Overview of the Amendment to HB 474:

Legislators in New Hampshire have offered an Amendment to HB 474.  The Amendment still allows in-state tuition to students without lawful status, but it has added a number of eligibility requirements.  These prerequisites require that a student must:  (1) reside in New Hampshire and be under the age of 25, (2) have completed schooling from grades 8 through grade 12 in New Hampshire, (3) have graduated from an approved New Hampshire high school or received a GED in New Hampshire, (4) enroll in a program leading to a certificate, associate’s, or bachelor’s degree at any institution within the university system of New Hampshire, (5) be without lawful status, (6) file an affidavit with the institution to which the student is applying stating that he or she has filed an application to legalize his or her immigration status, or will file such application as soon as he or she is eligible, and (7) meet all other criteria for in-state status.

Analysis:

This effort to modify New Hampshire’s existing law through the Amendment to HB 474 is still sound policy.  As noted above, it is not as favorable as HB 474, but it still gives individuals without status an opportunity to pursue post-secondary education at the in-state tuition rate.  In addition, it does not appear to conflict with federal law or with proposed versions of the federal DREAM Act.  Importantly, because it is unclear if and when the federal government will pass Comprehensive Immigration Reform or the DREAM Act, it is advisable to support a state bill that helps students at this very moment rather than wait for the federal government to act.    

If possible, advocates at the state level should attempt to eliminate the Amendment to HB 474 or to tweak it in order to increase students’ access to post-secondary education.  A few arguments listed below may assist in their advocacy efforts. 

More students would benefit from the legislation if it did not include an age restriction and a requirement that students attend school in New Hampshire for five years. 

The Amendment to HB 474 proposes that students complete grades 8 through 12 in New Hampshire.  This seems arduous.  Of the states that have laws allowing students without status to pay in-state tuition rates at post-secondary institutions, none have required that students be enrolled in school in the state for 5 years.[1]  Indeed, eight states require 3 years of high school in the state.  These states are:  California, Illinois, Kansas, Maryland, Nebraska, Rhode Island, Texas, and Utah.  Three states require 2 years of high school in the state.  These states are:  New York, Oklahoma, and Washington.  One state, New Mexico, requires 1 year of high school in the state.  One state, Connecticut, requires 4 years of high school in the state. 

The Amendment to HB 474 restricts eligibility to students under the age of twenty-five.  This requirement appears arbitrary and likely will limit the number of students who are able to enroll in post-secondary education.   Limiting access to higher education does not make good economic sense.  On the contrary, it is advisable for New Hampshire to increase access to post-secondary education as the state’s future depends on the development of a more educated work force.  If college is within reach, students are more likely to work hard to excel in high school and their families are more likely to make the necessary sacrifices to pay for college.   Each student who  attends college and obtains a professional job helps to bolster New Hampshire’s economy through wages, tax payments, and consumption of goods and services.  It also means that they are less likely to drain the social service budget of the state.  Indeed, students whose aspirations and educational opportunities are limited are more likely to drop out of school and become part of a permanent underclass in society with added social costs.

Access to higher education makes sense for other reasons as well.[2]  Experiences in states that have passed in-state tuition bills suggest that such legislation raises the percentage of high school graduates who pursue a college degree.   In addition, the students who benefit from in-state tuition bills tend to be hard-working and goal-oriented, with high academic standing.   Moreover, experts in states that have already passed legislation like HB 474 have reported that the cost of implementation has been negligible.  Because in-state tuition is not the same as free tuition, the money paid by these students actually tends to increase school revenues because it represents income that would not otherwise be there.   




[1] National Immigration Law Center, “Table: Laws & Policies Improving Access to Higher Education For Immigrants.”  http://www.nilc.org/eduaccesstoolkit2a.html#tables.

[2] Information in this paragraph was gleaned from the National Immigration Law Center, “Basic Facts about In-State Tuition for Undocumented Immigrant Students, “(January 2012).  http://www.nilc.org/basic-facts-instate.html.  For additional resources please go to NILC’s website for an excellent tool kit on “Access to Post-Secondary Education.”  www.nilc.org/eduaccesstoolkit.html