Issue Analyses

Through Municipal ID Card Initiatives, Cities Work to Document the Undocumented

By Jen Riddle and Kassandra Haynes

Many states and localities are considering and enacting laws and policies that welcome undocumented individuals and enhance their ability to live, work, and participate as contributing members of society. Eleven states have passed laws granting driver’s licenses or privileges to all residents, regardless of immigration status.  Not only has the issuance of driver’s licenses permitted undocumented residents of these states to travel safely and legally to work and school, it has provided them with a form of identification. Cities are also recognizing that the ability to identify oneself is critical to civic participation. Specifically, New Haven (Connecticut), Los Angeles, San Francisco, Oakland, and Richmond (California), Washington D.C.,  and Asbury Park and Mercer County (New Jersey) now offer municipal identification cards to all city residents. The municipal ID program recently approved by the New York City Council will launch in early 2015 and could benefit as many as 500,000 undocumented immigrants as well as other vulnerable New Yorkers.

ID cards typically display the photo and address of the cardholder and will empower residents to report crimes to the police.  They will enable individuals establish their identity to emergency medical responders. With the cards, individuals may also gain access to essential services such as opening bank accounts, obtaining loans, renting apartments, filling prescriptions, and picking up children from school. Click here for a list of ways in which ID cards would enhance individuals’ daily lives. While municipal ID cards are available to all who can establish residency, they are especially valuable to vulnerable residents – not only undocumented immigrants, but also victims of domestic violence and natural disasters, the homeless, low-income senior citizens, and the formerly incarcerated. 

Advocates are campaigning for municipal ID programs in a number of other cities around the country, including Boston, Philadelphia, Iowa City, Tucson, and Phoenix.  Such proposals are an important step toward embracing and protecting all city residents and affirming their dignity as human beings. CLINIC has prepared talking points on why municipal ID cards are fundamentally fair, make our communities safer, promote community inclusiveness, and further Catholic social teaching.

 

This summary was prepared in June 2014 with assistance from Legal Fellow Kassandra Haynes.  It is intended for informational purposes, not as legal advice. For advocacy strategy assistance, customized legal analysis, or the development of resources specific to your city or campaign, please contact State and Local Advocacy Attorney Jen Riddle at (301) 565-4807 or jriddle@cliniclegal.org.

New CLINIC Resource on the Costs of State and Local Involvement in Immigration Enforcement

By Jen Riddle

CLINIC is happy to announce an important new resource for affiliates concerned about the ways in which state and local governments may be participating in the enforcement of federal immigration laws. There are a number of programs through which Immigration and Customs Enforcement (ICE), the Department of Justice (DOJ), and other federal agencies recruit state and local law enforcement officials to help conduct immigration enforcement.

Often, participating in these programs may not be in the best interest of law enforcement or the local community. The cost of participation can be a drain on state and local resources and divert limited law enforcement efforts from more effective safety and crime prevention methods. Fortunately, most of these programs are completely voluntary. CLINIC’s new resource, “The Cost of State & Local Involvement in Immigration Enforcement,” outlines the major programs through which your state or local government may be cooperating in immigration enforcement, including how much they cost and whether they are mandatory.  The document can be found here.

CLINIC will continue to develop resources so partners and affiliates can approach their state and local governments and law enforcement agencies and advocate for positive reforms that welcome and integrate – rather than punish – immigrant families.

Why States Should Offer Unmarked Driver’s Licenses to ALL Residents (July 2014)

Currently, seven states and the District of Columbia grant driver’s licenses to residents who cannot prove lawful presence in the United States. Four additional states have passed legislation to that effect and will begin granting licenses to undocumented residents within the next year. However, only two of these states offer undocumented residents the standard driver’s license available to individuals lawfully present in the country. The other states offer licenses—sometimes called “driver’s privilege cards”—that contain language limiting the use of the license and are somehow marked or distinguishable by title, color, or design.

For most immigrants, driving is necessary in their everyday lives. They need to drive to get to work, to school, and to the supermarket. In addition, many immigrants are self-employed and rely on their cars to be able run their businesses and do their jobs. Consequently, the ability to drive is often essential to providing basic life necessities like food, shelter, and medical care. Granting driver’s licenses to undocumented individuals greatly improves their quality of life and well-being by allowing them to legally drive and live their lives as normally as possible. 

Despite the many benefits, there are a number of drawbacks to having a marked driver’s license. For undocumented individuals, having state-issued identification that is noticeably different from that of other residents draws attention to them and their lack of legal status. Because of the markings, everyone from police officers to the clerk at the corner store can know someone’s immigration status just by looking at their state-issued identification. The actors who learn this information that they would not otherwise know may not have either the right or the need to know it. Additionally, there is a risk that police officers, upon seeing a marked license, will inquire about the individual’s immigration status or even contact Immigration and Customs Enforcement (ICE). Several people interviewed by CLINIC describe feeling “discriminated against” or treated differently when using marked driver’s licenses. Because of these issues, many undocumented residents report only showing their marked driver’s license when absolutely necessary. They offer other forms of identification whenever possible.

Marked driver’s licenses also cause problems for individuals because they are often not accepted as identification or proof of age. Individuals have been turned away from stores when attempting to pay with a credit card or check, pick up prescriptions, or prove their age when purchasing alcohol or other restricted items. Others have been unable to sign the legal documents required to obtain loans or lease apartments. At least one student interviewed by CLINIC was turned away from the ACT college entrance exam because her marked license was not considered valid identification by ACT administrators.

Additionally, the application process and requirements for a marked driver’s license are often considerably more onerous and burdensome than those for the standard license. In many states, the application requires a large amount of paperwork and documents, much more than is required for a standard license. Marked driver’s licenses often must also be renewed more frequently than standard licenses, in some states as often as every year or two. This requires undocumented residents to go through the application process and pay the application fee far more often than individuals with standard licenses. All of these additional requirements impose a real burden on holders of marked driver’s licenses.

Overall, granting driver’s licenses to undocumented individuals is a good policy that helps immigrants participate more fully in society. It is also consistent with Catholic social teaching. Individuals must work to support their families and contribute to society. The Catholic faith calls for respecting every human being, regardless of immigration status, and acknowledging the dignity of their efforts to work in order to provide for themselves and their families. But the positive benefits of driver’s licenses are significantly undermined when such licenses are marked to denote that the holder is without lawful status or are not accepted as a form of official identification. For this reason, unmarked licenses with full privileges are preferable to marked licenses or “privilege cards.” If licenses must be distinguished in some way, states should strive to make the distinguishing features as minimal as possible in order to avoid unduly stigmatizing undocumented residents.

 

 

This document was prepared in July 2014 by CLINIC Advocacy Intern Matthew Seamon. 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 (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.

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.

Laws Extending In-State Tuition to ALL Residents

It is estimated that 65,000 undocumented students graduate from high school in the United States every year. These graduates face various financial barriers to pursuing a college education, including the fact that a social security number is required to qualify for federal financial aid. Since the Obama administration announced its Deferred Action for Childhood Arrivals (DACA) program in 2012, over 520,000 youth have been granted permission to work and, as a result, the right to obtain a social security number. (Click here for the numbers of individuals granted DACA in each state). While not all individuals believed to be eligible for DACA have been able to apply, the program has been instrumental in illuminating some of the difficulties undocumented young people face in their quest to pursue higher education and obtain legal employment. In particular, state educators, policy makers, and the public at large are beginning to appreciate the financial and educational barriers faced by undocumented youth and seek meaningful solutions.     

Out-of-state students pay an average of $22,203 a year to attend a public, 4-year college while in-state residents pay an average of $8,893.[1]  Recognizing this substantial difference in tuition, as well as the tremendous social and economic contributions of college graduates, a growing number of states are passing tuition equity laws – laws that extend eligibility for in-state tuition rates to all residents regardless of immigration status. More than 60% of our foreign-born population currently lives in a state with tuition equity.  Undocumented residents who meet certain criteria can access in-state tuition in 19 states.  16 of these states (California, Colorado, Connecticut, Illinois, Kansas, Maryland, Minnesota, Nebraska, New Jersey, New Mexico, New York, Oklahoma, Oregon, Texas, Utah, and Washington) have state-wide tuition equity laws or policies while 3 states (Hawaii, Michigan, and Rhode Island) have tuition equity policies at major educational institutions. [2]  

While this is great progress, there remains work to be done in the remaining states in which legislators have not yet passed tuition equity laws.  On the most restrictive end of the spectrum, Georgia explicitly prohibits undocumented students from accessing in-state tuition while Alabama and South Carolina bar undocumented students from even enrolling in public institutions of higher education. CLINIC has prepared Talking Points on why offering in-state tuition rates to all residents, regardless of immigration status, is fundamentally fair, fiscally responsible, beneficial to the economy, and in line with Catholic social teaching.  We hope these will assist in your advocacy, whether it is convincing state legislators to sponsor or vote for a tuition equity bill; persuading decision-makers in university systems that tuition equity is sound public policy; writing an op-ed or speaking to the media; or converting the minds and hearts of members of your community. 




[1] See background information on the federal IN-STATE for DREAMERS Act of 2014, available at: http://www.murray.senate.gov/public/_cache/files/ac4d9ed0-b3ae-4168-970d-c08eb35b4a04/instatefordreamersact2014.pdf

[2] It is worth noting that Ohio and Massachusetts, along with a handful of individual universities and community colleges around the country, limit access to in-state tuition to DACA grantees only.


 

 

This summary 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.

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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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State Laws Extending Driving Privileges to ALL Residents (January 2014)

     Driver’s licenses play a critical role in American society and enable us to participate more fully and productively in our communities. Most of us rely on cars to get ourselves and our families to work, school, the hospital, the grocery store, and church.  In addition to facilitating transportation, driver’s licenses enhance public safety by ensuring that all drivers are trained, tested, and qualify for automobile insurance.

     A growing number of states are recognizing the importance of offering driver’s licenses to all residents regardless of immigration status.  In 2013, 8 states, the District of Columbia, and Puerto Rico passed laws granting driving privileges to the undocumented. Each state provides a type of license, valid for anywhere from 1 year to 8 years, to all residents who can meet the respective eligibility requirements. Only Washington and New Mexico do not distinguish between drivers who are U.S. citizens or lawful visitors and those who are not.  None of the driving permits currently available to the undocumented meet the federal REAL ID Act requirements[1], which means that they are not accepted for federal identification purposes, including boarding a plane or entering a federal building.

     While we continue to wait for Congress to pass comprehensive immigration reform with a path to legalization and citizenship for the undocumented, we will likely see more states pass driver’s license laws to allow their undocumented residents to travel safely and legally to work and school, meet the basic needs of their families, and continue contributing to society.  State lawmakers are realizing that by not offering licenses to all state residents, they are essentially forcing many undocumented individuals - especially in areas without viable public transportation – to drive without a license.  Driving without a license not only jeopardizes the safety of all drivers and passengers but also carries serious legal consequences for unlicensed drivers.  Only a handful of states consider driving without a license to be a civil violation.  It can result in a criminal misdemeanor conviction in 37 states including jail time in 41 states.  Almost every state also imposes a fine, ranging from $100 to $1,000, and some states can impound unlicensed drivers’ vehicles.   

     In addition to facing prosecution and other penalties, individuals stopped for driving without a license are at risk in some jurisdictions of being questioned by police about their immigration status.  They may then be targeted by ICE for deportation through the Secure Communities fingerprint sharing program or other partnerships between ICE and local law enforcement.  The risk that unlicensed driving will result in deportation is particularly acute in states like Arizona, Georgia, Alabama, and South Carolina where “show me your papers” laws require police to check the immigration status of lawfully stopped individuals whom they have reason to believe are in the country illegally, as well as in the 19 states where ICE maintains 287(g) agreements permitting state and local law enforcement officers to question individuals in their custody about their immigration status.  Even if undocumented drivers are not ultimately deported as a result of having to drive without a license, they may be placed into immigration detention, where they can no longer care for their children, are unable to work, and may lose their jobs, resulting in dire financial and social consequences for themselves and their families.  

     California, Colorado, Connecticut, the District of Columbia, Illinois, Maryland, Nevada, New Mexico, Oregon, Puerto Rico, Utah, Vermont, and Washington are to be commended for passing laws permitting their undocumented residents to obtain legal permission to drive.  Such laws permit individuals to continue to pursue their livelihoods and care for their families without the constant fear of being stopped by the police, issued an expensive fine, charged with a misdemeanor, or possibly turned over to ICE and deported. Furthermore, driver’s licenses are often used to verify an individual’s identity for the purpose of cashing a check, renting an apartment, receiving medical care, and accessing other basic services.  The vital role licenses play in American society has been aptly described by undocumented journalist Jose Antonio Vargas as follows: “When you’re undocumented, a driver’s license is not only driver’s license, it’s proof that you exist.” 

Below is a map of the jurisdictions that have passed laws permitting undocumented residents to apply for driver’s licenses. Click on a particular state to review the relevant law, the eligibility requirements for obtaining a license, and other details.  

 

New Mexico

 

[1] This 2005 law, passed to prevent terrorists from obtaining state-issued identification documents, set minimum security standards for state-issued driver’s licenses and identification cards (including a requirement that recipients have a social security number or proof of lawful status) and prohibits federal agencies from accepting a state driver’s license for official purposes until the Department of Homeland Security has determined that the state meets the minimum standards.    

 

This summary was prepared in January 2014 for informational purposes only and is not intended as legal advice.  Research was provided by Anabel Diaz, Brian Shyr, Ruhee Vagle, Nicole Weinstock, and Kasandra Haynes.  For questions, please contact CLINIC’s State & Local Advocacy Attorney Jen Riddle at jriddle@cliniclegal.org or (301) 565-4807. 

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Recent Developments in State & Local Immigration Enforcement (Aug 2013)

As members of Congress prepare to return to Washington, D.C. from the summer recess, the future of U.S. federal immigration policy remains uncertain.  Families and communities across America continue to advocate for comprehensive reform to fix our broken immigration laws.  Despite the looming uncertainty on a federal level, one thing is becoming increasingly clear: Many of the immigration enforcement actions undertaken by state and local actors attempting to make up for federal inaction are not workable solutions.  This message is coming both from court decisions in legal challenges to state and local immigration enforcement as well as from the states and localities themselves.  Some recent developments are highlighted below.    

 

4th Circuit Issues Two Decisions Limiting State and Local Role in Immigration Enforcement

 Three Provisions of South Carolina Anti-Immigrant Law Must Remain Blocked

On July 23, 2013 the 4th Circuit Court of Appeals held  that three major sections of South Carolina’s 2011 anti-immigrant law, SB 20, must remain blocked.  Among other things, the law made it a felony for someone to harbor or transport an unauthorized immigrant and for unauthorized immigrants to allow themselves to be harbored or transported.  In addition, SB 20 made it a misdemeanor to fail to carry immigration paperwork.  Finally, it made it a state crime to carry false or fraudulent identification documents for the purpose of proving lawful presence in the U.S.  The 4th Circuit found that, because each provision was preempted by federal law, the lower court was correct to prevent them from being enforced.  According to the court, criminalizing individuals who are “attempting to do no more than go to school, go to work, and care for their families” is inconsistent with federal immigration policy and objectives.  Despite this legal victory, the provision of South Carolina’s law that requires local police to check the immigration status of detained individuals they suspect of being in the country without documents has been in force since the U.S. Supreme Court permitted implementation of a similar “show me your papers” provision of Arizona’s immigration law (SB 1070) last June.  

 Maryland Sheriffs Cannot Detain or Arrest Solely on Suspicion of Immigration Status Violations

On August 7, 2013, the 4th Circuit Court of Appeals held  that local and state law enforcement officers may not detain or arrest an individual based solely on a known or suspected civil violation of federal immigration law. This lawsuit was brought by Roxana Santos who was seized and arrested by two Frederick County, Maryland sheriffs based on their discovery that ICE had issued a civil warrant against her.  Neither deputy was authorized to engage in federal immigration law enforcement under a 287(g) agreement  between the Sheriff’s Office and ICE. Citing to the U.S. Supreme Court’s decision in Arizona v. United States, the circuit court found that local law enforcement officers do not have the authority to arrest individuals solely based on civil immigration violations. The court reminded us that most immigration violations are civil infractions - not crimes - and that Congress entrusted the authority to make removability decisions to the federal government - not to state or local actors.  As a result, Santos’ unlawful detention by the sheriffs violated her 4th amendment right to be free from unreasonable search or seizure.  

 

New Orleans and Newark Join Growing List of Cities to Limit Compliance with ICE Detainer Requests

Localities across the country continue to adopt policies or ordinances restricting the extent to which local law enforcement may cooperate with ICE by honoring immigration detainers.  ICE detainers are requests that a local law enforcement agency continue to hold an individual in criminal custody for up to 48 hours beyond when he or she would otherwise be released so that ICE can assume custody.  The Sheriff of Orleans Parish announced  on August 14, 2013, that his office would only comply with such requests from ICE when they involved individuals charged with specific violent felonies.  The Sheriff’s Office also stated that it will no longer initiate investigations into the immigration status of individuals in its custody.  This policy is “one of the farthest-reaching of its kind in the country.”   The new guidance followed a unanimous New Orleans City Council resolution  urging the Sheriff to stop honoring ICE detainers entirely.  It is also part of a settlement agreement in a federal lawsuit filed by two immigrant workers who were held unconstitutionally on the basis of ICE detainers for 90 and 160 days beyond the conclusion of their criminal sentences.  New Orleans is the first locality in the Southern U.S. to implement an anti-detainer policy.  Other jurisdictions with similar policies include San Miguel and Taos counties in New Mexico; San Francisco and Santa Clara counties in California; Cook and Champaign counties in Illinois; Milwaukee County, Wisconsin; Multnomah County, Oregon; and the cities of Washington, D.C., Chicago, Berkeley, Los Angeles, and New York.  

Newark, New Jersey also recently announced  that it will cease complying with ICE requests to hold suspects accused of minor crimes such as shoplifting or vandalism.  Advocates for the new policy directive, signed by Newark’s Police Director on July 24, 2013, included the Newark Archdiocese Department of Social Concerns and several Newark churches.  Reverend Karl Esker of St. James Church acknowledged the role of local law enforcement in “funnel[ing] immigrants into the detention and deportation dragnet through problematic information-sharing initiatives that devastate the stability of communities.” He commended  the Newark Police Director for his leadership on this issue and called the policy “absolutely essential in a city…. [w]here trust between local law enforcement and the community is crucial to protecting public safety.”    

 

ICE Declines to Sign Immigration Enforcement Partnership Agreement with Knox County, Tennessee

In contrast to local law enforcement leaders in New Orleans and Newark, the Sheriff of Knox County, Tennessee would like to enhance his agency’s role in federal immigration enforcement.  The Sheriff had expressed interest in entering into a partnership with ICE under section 287(g) of the Immigration and Nationality Act.  The 287(g) program allows certain local law enforcement officers, following training from ICE, to be deputized to enforce federal immigration law in their local jurisdictions. ICE currently maintains 287(g) agreements  with 36 law enforcement agencies in 19 states, has trained more than 1,300 local law enforcement officers, and credits the program with identifying more than 309,283 potentially removable aliens since January 2006.  Following several weeks of negotiations, ICE ultimately declined to enter into a 287(g) partnership with Knox County.  The Sheriff posted the following response  on his agency’s website: “I will continue to enforce these federal immigration violations with or without the help of [ICE]. If need be, I will stack these violators like cordwood in the Knox County Jail until the appropriate federal agency responds.”  

This controversial statement by the Knox County Sheriff illustrates the diverse views on the precise role that local law enforcement can and should play in identifying unauthorized immigrants and effectuating their removal under federal immigration laws. For many, last year’s U.S. Supreme Court decision striking down

Arizona’s infamous immigration law made it clear that immigration enforcement is the purview of the federal government, not state legislatures or local police.  Yet, there are local law enforcement officers, state legislators, and members of Congress who clearly disagree.  

 

Federal Enforcement-Only Bill Would Compel States to Enforce Immigration Laws

This June, the Judiciary Committee of the U.S. House of Representatives approved the Strengthen and Fortify Enforcement (SAFE) Act (H.R. 2237), an enforcement-only bill that would essentially overturn the Arizona v. United States decision by empowering - in instances even mandating - states and localities to act as immigration agents and criminalize immigration violations. Concerns include further exacerbating strained state and local resources, compromising community safety, and increasing the risks of discrimination and racial profiling.  A number of local and state law enforcement officials and departments have opposed further delegation of immigration enforcement to local police.  According to Police Chief Roberto Villaseñor in Tucson, Arizona, “Law enforcement officers have taken an oath to protect all those who live within our communities, regardless of race, culture, or nation of birth.  We don’t need short-sighted laws that tie our hands and prevent us from establishing the trust we need to protect the communities we serve.”  For a summary of the SAFE Act, click here .

 

This document was prepared in August 2013 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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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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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.

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