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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/

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. 

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.

Webinar: Immigration Advocacy: From Capitol Hill to Your Neighborhood

This webinar is for current and aspiring immigrant advocates on a grassroots level. Immigration laws and policies come from the federal government but immigrants' lives are also impacted by state and local laws and policies. This webinar provides an overview of the role each level of government plays in regulating the lives and livelihoods of immigrants. You will learn about our broken federal immigration system and what you can do to help convince Congress to pass comprehensive immigration reform. We also cover the limited role of the Executive Branch in setting immigration policies. Finally, we discuss the types of laws and policies that state and local governments around the country are passing on such important matters as higher education, driver's licenses, immigration fraud, and police involvement in immigration enforcement. In addition to learning about these issues, you will acquire tools and strategies for advocating to change policies and practices in your communities.

Held on: 5/22/14

Presenters:

  • Allison Posner, Director of Advocacy, Catholic Legal Immigration Network, Inc (CLINIC)
  • Jen Riddle, State and Local Advocacy Attorney, CLINIC
  • Reverend Timothy Graff, Pastor, St. Joseph's Parish, Bogota, NJ and Director of Human Concerns, Archdiocese of Newark
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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.

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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Advocating for In-State Tuition for All Residents

By Jen Riddle

 

How many undocumented students could benefit from in-state tuition?

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. 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.

 

What is the cost difference between in-state and out-of-state tuition?

Out-of-state students pay an average of $22,203 a year to attend a public, four-year college, while in-state residents pay an average of $8,893.  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.

 

Which states already allow undocumented students to qualify for in-state tuition rates?

More than 60 percent 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.  Sixteen 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 three states (Hawaii, Michigan, and Rhode Island) have tuition equity policies at major educational institutions.  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.

 

What can I do?

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. 

 

Questions?

For advocacy strategy assistance, customized legal analysis, or the development of resources specific to your state or campaign, please reach out to State and Local Advocacy Attorney Jen Riddle at (301) 565-4807 or jriddle@cliniclegal.org.

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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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Talking Points on Tuition Equity: Why States Should Offer In-State Tuition to All Residents (March 2014)

Offering in-state tuition rates to all residents benefits the state’s economy.

  • In-state tuition is not free tuition. Tuition equity laws will generate increased revenue from students who could not otherwise afford to attend college.  
  • Laws that invest in young people by promoting access to affordable higher education create a more educated workforce and make the state stronger and more competitive.
  • According to the U.S. Census Bureau, individuals with Bachelor’s degrees earn $1 million more over their lifetimes than those with high school diplomas.[1] College graduates have higher-earning potential, will pay higher taxes, and will likely spend more in state economies.
  • Individuals with increased earning potential rely less on state resources such as healthcare and social services.

Offering in-state tuition rates to all residents is fundamentally fair.

  • Students brought to this country as young children should not be deprived of access to state colleges and universities because of their parents’ choices.
  • Access to in-state tuition makes the college experience possible for our state’s best and brightest who often cannot afford the cost of out-of-state or international student tuition.
  • Talented, hardworking students should not be excluded from the opportunity to pursue their dreams. Tuition equity provides them the tools to succeed fully as community members and continue contributing to the state. 

Offering in-state tuition rates to all residents is fiscally responsible.

  • The state has already educated its students from kindergarten through high school.[2] Giving all students an equal opportunity to attend college maximizes the state’s return on its investment and ensures these skills and talents do not go to waste.
  • Tuition equity laws build the state’s workforce by opening the door for future doctors, engineers, entrepreneurs, teachers, and other professionals to give back to our state and our communities.
  • Young people who have been educated in this state consider it to be their home. It is wise to retain hard-working, economically-productive residents and their families.

Offering in-state tuition rates to all residents furthers the message of Catholic social teaching.

  • Our Catholic tradition teaches us to protect and respect human dignity, regardless of immigration status. An affordable education allows all state residents the opportunity to live in dignity.
  • Higher education increases individuals’ opportunities to obtain employment – a fundamental right necessary to support their families.  
  • Enabling a student to afford college positively impacts both the financial and human potential of that student’s entire family.

This summary was prepared in March 2014 with assistance from Legal Fellow, Kassandra Haynes.  It is intended for informational purposes, not as legal advice. For questions, please contact CLINIC’s State and Local Advocacy Attorney, Jen Riddle, at jriddle@cliniclegal.org or (301) 565-4807. 




[2] A free public elementary and secondary education is a fundamental constitutional right of all children, regardless of immigration status. This was established in 1982 by the U.S. Supreme Court’s landmark decision in Plyler v. Doe.

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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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Webinar - The Implementation of DACA in the States and Lessons Learned for Legalization

This webinar is for legal service providers, immigrant advocates, educators, faith leaders, employers, community organizers, and others helping DREAMers apply for DACA or navigate work, school, and life after receiving DACA. Have you had issues helping DACA applicants meet the education eligibility requirements, obtain juvenile records, or access scholarships or loans? Have you or your DREAMers encountered hesitation, confusion or obstruction from state and local actors in understanding what DACA means and what rights DACA grantees have with respect to employment or access to driver's licenses, higher education or health care? We discuss these issues and suggest strategies for advocating on behalf of individual DREAMers as well as broader efforts to change states' policies and practices. We also consider how lessons learned from DACA will likely be valuable in implementing a future legalization program.

Date recorded: June 26, 2013

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Arizona and Nebraska Still Battling to Keep DACA Recipients Off the Road (June 2013)

Last August, the Obama Administration began implementing its Deferred Action for Childhood Arrivals (DACA) program – a policy through which certain undocumented individuals receive temporary permission to stay in the U.S. for two years as well as the right to apply for employment authorization. After some initial resistance to issuing driver’s licenses to DACA grantees, most states eventually decided to do so. At this time, only two states – Arizona and Nebraska – continue to deny state driver’s licenses or identification cards to DACA recipients.   

In November 2012, a number of civil rights organizations filed a class-action lawsuit on behalf of the Arizona DREAM Act Coalition and other young immigrants, challenging the Executive Order issued by Governor Brewer of Arizona on August 15, 2012 that denied state benefits, including driver’s licenses, to DACA grantees.  The lawsuit alleged that Arizona’s policy violates the Supremacy and Equal Protection clauses of the U.S. Constitution and requested a preliminary injunction in the form of a court order directing Arizona to stop enforcing its policy of denying driver’s licenses to DACA recipients. On May 16, 2013, a U.S. District Judge rejected the argument that federal law preempted the Governor’s order. However, the court concluded that the plaintiffs’ allegation that they are being denied equal protection is likely to succeed at a future hearing on the full merits of the case. The equal protection argument is based on the fact that DACA recipients are being denied Arizona driver’s licenses while other noncitizens who have received deferred action status and work authorization from the federal government under different programs are issued licenses. According to the court’s order , Arizona can continue its policy for now.  However, the court will set a full hearing for the DACA plaintiffs to prove that they are being denied equal protection under Arizona’s law. At that time, the court may order Governor Brewer to halt her policy of denying driver’s licenses to DACA recipients.

Following Governor Brewer’s lead, on August 17, 2012, Nebraska Governor Heineman declared that his state would not issue driver’s licenses or other public benefits to DACA grantees. Two lawsuits have been filed against the Nebraska Department of Motor Vehicles (DMV) which interpreted the Governor’s announcement as a directive to deny licenses to DACA grantees.  Like in Arizona, the DMV refuses to accept the work authorization permits of DACA recipients as proof of eligibility for driver’s licenses but continues to issue licenses to noncitizens with deferred action work permits through other programs. The lawsuit filed by the Mexican American Legal Defense and Educational Fund (MALDEF) alleges violations of the Supremacy and Equal Protection clauses of the U.S. Constitution. The case brought by the ACLU of Nebraska alleges that the DMV implemented this policy in violation of the Due Process clause of the state Constitution and circumvented the state’s Administrative Procedures Act, which requires published notice and a public hearing before changing such a policy.

 

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

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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