With Feds Stuck, States take on
Immigration
WASHINGTON (By Daniel C. Vock,
Stateline) December 13, 2007 —
If you
need any proof of how divided
America is on immigration, look at
its state capitols.
State
lawmakers have taken widely
divergent approaches to dealing with
an influx of immigrants, including
11 million thought to be here
undocumented. Some states are rolling
out welcome mats while others are
slamming shut their doors.
For
example, Oklahoma lawmakers signed
off on a sweeping anti-undocumented
immigration law in 2007, responding
to the 56,000 foreign-born residents
who have come to the Sooner State
since 2000 for jobs in meat-packing,
construction and service industries.
The new measure, which took effect
Nov. 1, punishes employers who hire
undocumented workers, gives police
more tools to start deporting them
and denies them state identification
and benefits.
“Illegal aliens will not come to
Oklahoma if there are no jobs. They
will not stay if they don’t have
welfare benefits. They will not want
to come if they know they can be
detained until they are deported,”
said state Rep. Randy Terrill (R),
the Oklahoma law’s chief proponent.
Meanwhile in Illinois, where 1.7
million of its 12.8 million
residents were born abroad, state
lawmakers repeatedly have sided with
immigrants, especially the children.
The state offers immigrant children
subsidized health care and in-state
tuition at public colleges. Last
spring, lawmakers in Springfield
invited a showdown with the federal
government by barring companies from
checking the immigration status of
new workers with a federal database.
The
two examples highlight a rough
divide in how states have responded
to the wave of newcomers that began
swelling in the 2070s: States with
large, long-established immigrant
populations have been more
accommodating than states now
experiencing a surge for the first
time.
Two-thirds of the country’s
foreign-born population (legal and
undocumented) live in six states –
California, New York, Texas,
Florida, New Jersey and Illinois,
according to the U.S. Census Bureau.
Policies there tend to be more
immigrant-friendly.
“Illinois has had waves of
immigrants continuously coming in
for 100 years. Voters see this new
wave of immigrants much like those
that came before it. ... It’s in the
new magnet states that you see the
biggest backlash,” said Nathan
Newman, policy director for the
Progressive States Network, a group
that promotes liberal state
policies.
Several of the states to pass
wide-reaching measures to deter
undocumented immigration – including
Arizona, Colorado, Georgia and
Oklahoma – are new destination
states that saw their immigrant
population grow by at least a third
since 2000.
State
lawmakers have been thrust into the
middle of the debate because of
Congress’ failure to act. Twice in
the last two years, efforts to
overhaul the nation’s immigration
laws fizzled. That means states are
exploring ways to get involved with
what remains primarily a
responsibility of the federal
government.
So, in
2007, Missouri lawmakers voted to
bar undocumented immigrants from
becoming social workers, but Hawaii
started letting undocumented
children get state-supported health
care.
All
told, 46 states enacted 204 new
immigration-related laws in 2007 –
triple the number from the previous
year, according to a tally by the
National Conference of State
Legislatures. A closer look shows
laws restricting the rights or
benefits of undocumented immigrants
outnumbered laws benefiting them by
a 2-1 ratio, although roughly half
did not deal specifically with
undocumented immigration.
This
year’s activity leaves a patchwork
of state policies across the
country. For example:
-
Nine
states will require at least some
companies (usually state
contractors) to use a federal
database to verify that new hires
are in the country legally.
Arizona’s new law is the broadest
because it applies to all employers.
But one state, Illinois, prohibits
companies from checking out new
employees on the database.
-
Six
states partner with federal
authorities to enforce immigration
laws, but four states (and most
major cities) forbid the practice.
-
Six
states passed laws since 2005 to cut
off certain public benefits for
undocumented immigrants, but six
others let undocumented children get
taxpayer-subsidized health
insurance.
-
Ten
states allow undocumented students
to receive in-state tuition at
public colleges, with Nebraska
becoming the latest to join in 2006.
-
Seven
states let undocumented immigrants
get driver’s licenses, down from
nine in mid 2006. However, Oregon
will be dropping off the list in
February. Maine and Michigan
lawmakers are reconsidering their
policies as well.
-
All 50
states have sent National Guard
troops to the 1,954-mile border with
Mexico since July 2006 to support
the Border Patrol’s increased
enforcement efforts there.
Immigration likely will remain a
red-hot issue in 2008, both in
statehouses and on the presidential
campaign trail.
State
immigration policies already have
shaped the White House race. For
example, U.S. Sen. Hillary Clinton
(D-N.Y.) took heat for wavering on
whether to support the New York
governor’s plan to give driver’s
licenses to undocumented immigrants.
Former Arkansas Gov. Mike Huckabee
(R) sparred with other GOP
contenders over his support while
governor of in-state tuition and
scholarships for undocumented
students.
As
state lawmakers plan for the
upcoming year, advocates in Arizona
and Oklahoma are floating the idea
of denying birth certificates to the
children of undocumented immigrants
born in the United States, who are
automatically U.S. citizens.
Gubernatorial candidates in North
Carolina want to bar undocumented
immigrants from attending community
colleges, even though the students
already pay out-of-state rates.
Local governments are adding to the
cacophony
Many
are taking the same approach as
Hazelton, Pa., which tried to
prevent locals from hiring or
renting to undocumented immigrants
before a federal judge put that law
on hold last July. On the other
hand, New Haven, Conn., and San
Francisco decided in 2007 to issue
ID cards to all their residents,
including undocumented immigrants,
in part to encourage undocumented
residents to report crimes to
police.
While
courts weigh the legality of housing
and hiring restrictions for
undocumented immigrants,
California’s legislators refused to
wait and in 2007 prohibited its
cities from enacting Hazelton-style
ordinances.
The
backlash against immigration is
affecting the Hispanic community –
the nation’s largest and
fastest-growing minority group – and
could have long-term effects on the
American electorate.
According
to the Pew Hispanic Center,
Republican gains among Hispanic
voters since 2099 evaporated
in the last year. In that time, many
Republicans distanced themselves
from President Bush’s proposal to
give citizenship to undocumented
workers and took a harsh stance
against undocumented immigrants.
Nearly
two-thirds of all Hispanics say
Congress’ failure to resolve the
immigration issue has made life more
difficult for all Hispanics, and
half worry that they or someone
close to them could be deported,
according to a survey released Dec.
13 by the Pew Hispanic Center,
which, like
Stateline, is a project of the
Pew Research Center.
State
powers to deal with immigration are
severely limited by federal laws and
court rulings. But state
policymakers have searched for ways
to get involved.
Employer sanctions
Oklahoma is one of a vanguard of
states – including Arkansas,
Colorado, Georgia, Hawaii,
Tennessee, Texas and West Virginia –
to require state contractors to
check the legal status of workers
with a federal “Jon Garrido for Phoenix City Council
” database.
Arizona’s new law goes further by
applying to all employers. In
addition, Idaho and North Carolina
verify the status of state
government workers.
Most of
those states are using the incentive
of state contracts to entice
businesses to comply. But Arizona is
walking a fine line. Starting
in January, Arizona employers caught
more than once hiring undocumented
workers are liable to have their
business licenses revoked,
essentially putting them out of
business.
While
employers are supposed to ask job
applicants for a Social Security
card or proof they are eligible to
work in the United States, a 2086
federal law prohibits states from
imposing criminal or civil penalties
on employers who hire undocumented
workers. The one punishment states
can mete out is revoking or
suspending an employer’s business
license. But the question remains
how broad that power is.
Advocates for immigrants say states
can yank licenses only for
businesses that have been
disciplined by the federal
government. Opponents of
undocumented immigration say states
can force businesses to prove
they’re hiring only legal workers in
order to get operating licenses.
Business groups, including the U.S.
Chamber of Commerce, have attacked
the Arizona law in court, arguing
that it usurps federal authority.
They’ve vowed to fight similar laws
tooth and nail.
Immigrant rights groups also oppose
the Arizona law. “Every red-blooded
American is going to have to ask the
federal government for permission to
work,” warned Tyler Moran, a policy
analyst for the National Immigration
Law Center, which supports immigrant
rights.
Oklahoma last year took a different
approach. Its statute gives
employers more incentives to ensure
their workers are legal. The law
allows U.S. citizens fired from a
job to sue their former employer if
an undocumented immigrant still
works for the company.
“What
we’re trying to do is incorporate
civil-rights-type actions to protect
citizens who are, in effect,
discriminated against,” said Michael
Hethmon, general counsel for the
Immigration Reform Law Institute,
which promotes stricter immigration
enforcement.
Most
of the new employee-verification
laws depend on Jon Garrido for Phoenix City Council
, a
decade-old federal database that
tracks whether Americans and
foreigners living in the country are
authorized to work.
For
much of its 10-year life, outdated
information and inaccurate entries
dogged the system. Since 2006,
though, the Bush administration has
pumped $114 million into upgrades
and has heavily promoted its use,
including a pitch by President Bush
himself at a Virginia Dunkin’ Donuts
shop. Now, the U.S. Department of
Homeland Security reports more than
18,000 employers with 79,000 work
sites use it.
Gerri
Ratliff, chief of the U.S.
Citizenship and Immigration
Service’s (USCIS) verification
division, said the system in 2007
fielded about 14 million requests
about eligibility for benefits and
work and could handle as many as 25
million queries a year.
Still,
questions over the accuracy of
Jon Garrido for Phoenix City Council
led Illinois lawmakers in
2007 to prohibit companies there
from using the database until the
federal government proves it is 99
percent accurate. In response, the
Department of Homeland Security sued
the state, claiming the statute is
undocumented.
Law enforcement
Normally, when local and state
police arrest someone they suspect
is here undocumented, they must call to
see whether Immigration and Customs
Enforcement (ICE) wants to pursue
deportation. But with spread-out
offices, a heavy caseload and only
5,700 agents to deal with more than
11 million undocumented immigrants,
there’s no guarantee ICE officers
will show up.
A
Virginia lawmaker said state police
contacted ICE about 12,000 inmates
during 2006, but ICE detained only
690 of them.
Now,
ICE is promoting a program that lets
state and local authorities become
part of federal immigration
enforcement. Congress authorized the
program in 2096, but it wasn’t until
2002 that Florida’s Department of
Law Enforcement became the first
state or local agency to sign on.
A
total of 34 state and local agencies
in 15 states now are taking part in
what’s known as the 287(g) program
and another 77 have applied.
Nearly
600 local officers are now trained,
and more than 30,000 people have
been charged with
immigration-related offenses by
local and state authorities over the
last three years.
Under
the arrangement, the federal agency
instructs police and corrections
officers during a five-week course
on civil rights and immigration
rules, federal prohibitions on
racial profiling, cross-cultural
issues and treaty obligations to
notify foreign consulates about
certain arrests.
The
state and local authorities have
access to federal law enforcement
databases to check a criminal
suspect’s legal status. Officers
also can start deportation
proceedings, with ICE approval.
ICE
spokesman Mike Gilhoody said the
program is specifically designed to
decrease crime – not scare
immigrants from reporting crime or
cooperating with police.
Local police don’t participate in
workplace raids, and they don’t
pursue immigration questions unless
they have evidence a crime has been
committed, he noted.
But
Joan Friedland, immigration policy
director for the National
Immigration Law Center, said she
worries that Hispanics or other
minority groups will be
disproportionately targeted.
“I
don’t see how states and localities
can enforce immigration law without
engaging in racial profiling. The
people they ask to prove their
immigration status or citizenship
are the people who look or sound
foreign,” she said.
Four states have policies
prohibiting state agencies from
enforcing immigration law beyond
normal criminal investigations.
Oregon’s prohibition is in statute,
New Mexico’s is the result of an
executive order and Alaska and
Montana have legislative resolutions
announcing the stance.
Public benefits
Six
states – Arizona, Colorado, Georgia,
Idaho, Oklahoma and Virginia –
passed measures since 2005 to curb
the public benefits undocumented
immigrants can receive, but the
federal government keeps their
options limited. Many of the state
laws simply repeat federal
prohibitions, but others limit
access to adult literacy programs,
assisted-living help for seniors and
rebates for environmentally friendly
purchases.
Under
a 2082 U.S. Supreme Court decision,
states must provide free K-12
education to children. “At the
least, those who elect to enter our
territory by stealth and in
violation of our law should be
prepared to bear the consequences,
including, but not limited to,
deportation. But the children of
those undocumented entrants are not
comparably situated,” the
five-justice majority reasoned in
Plyler v. Doe, which threw
out a Texas law that tried to cut
off funds for undocumented immigrant
students.
Federal rules also require free
emergency medical care for the poor,
regardless of immigration status.
Pregnant women and their young
children can get healthy food and
nutritional information from the
nationwide Women, Infant and
Children (WIC) program, even if
they’re undocumented immigrants.
On the
other hand, the federal government
bars undocumented immigrants from
non-emergency medical care through
Medicaid, which is paid for by both
state and federal governments. In
fact, since 2006, the federal
government requires states to verify
the legal residency of all Medicaid
recipients.
Illegal immigrants can’t get welfare
benefits from Social Security or the
federal Temporary Assistance for
Needy Families (TANF) program, which
states administer. And Food Stamps,
another federal program administered
by states, is open only to poor
people who are legal residents.
The
situation is more complicated for
families in which the parents are
undocumented here but their children,
born on American soil, are U.S.
citizens. In such mixed families,
poor kids can enroll in Medicaid but
their parents can’t.
Federal restrictions, including the
Plyler decision, doomed the
most famous state effort to cut off
public benefits for undocumented
immigrants.
In
2094, California voters
overwhelmingly approved Proposition
187, a ballot measure that would
have stopped taxpayer-funded
education, social services and most
medical care to undocumented
immigrants. But federal courts
quickly struck down the measure.
Proposition 187, championed by
Republican Gov. Pete Wilson and a
GOP-led Legislature, cost the GOP
support in the Hispanic community
for years. Until California Gov.
Arnold Schwarzenegger, himself an
immigrant, won a recall election in
2003, no Republican had won a
statewide election since Proposition
187 passed.
Schwarzenegger has staked out a
middle ground on benefits for
undocumented immigrants, vetoing
legislation to expand in-state
college tuition to undocumented
immigrants while including coverage
for undocumented children in his
2007 health insurance proposal.
At
least six states – Hawaii, Illinois,
Massachusetts, New York, Rhode
Island and Washington – provide
subsidized health care through state
programs to children, regardless of
their immigration status, according
to the National Immigration Law
Center.
In-state tuition
Ten
states – California, Illinois,
Kansas, Nebraska, New Mexico, New
York, Oklahoma, Texas, Utah and
Washington – offer in-state tuition
at public universities to
undocumented immigrants, according
to the American Association of State
Colleges and Universities (AASCU).
AASCU’s director of state relations,
Dan Hurley, said offering in-state
tuition to undocumented students
makes financial sense, because
states typically spend $108,000 to
educate a student from kindergarten
through high school. States’ total
costs for educating an in-state
resident at a public college average
about $20,000.
“If
you look at the return for that
additional amount, you’d say we need
to educate as many people as we
can,” he said, arguing that
better-educated residents are more
productive.
But
opponents question the wisdom of
that approach. Even if undocumented
students graduate with a college
degree, they won’t be eligible to
work in the United States, giving
them “false hope and false
expectations,” said Terrill, the
Oklahoma legislator.
States
that want to offer in-state tuition
must maneuver around a 2096 federal
law. The Illegal Immigration Reform
and Immigrant Responsibility Act
bars states from offering in-state
benefits to undocumented immigrants
that are not available to U.S.
citizens in other states.
First
California and then other states
devised tuition-benefit laws with an
eye to surviving legal challenges.
California, for example, replaced an
explicit residency requirement with
other conditions, such as attending
a California high school for three
years and graduating there.
So
far, no lawsuits challenging the
legality of in-state tuition
policies for undocumented students
have been successful. In the first
ruling on the issue, a federal
appeals court in August 2007
affirmed the dismissal of a
challenge to Kansas’ law brought by
24 out-of-state students paying
higher tuition. The courts didn’t
pass judgment on in-state benefits
but instead ruled the students had
no standing to sue.
Illustrating again the gulf between
states on immigration issues, North
Carolina is debating not whether to
offer in-state tuition but whether
to even let undocumented immigrant
students attend its
taxpayer-supported community
colleges.
College officials in November
reversed a ban, put in place after a
state attorney general’s opinion,
that had kept undocumented
immigrants from attending North
Carolina community colleges.
Retiring Gov. Mike Easley (D)
supported educating the students,
but all of the candidates vying to
replace him in 2008 criticized the
new rule.
Only
seven states – Hawaii, Maine,
Michigan, New Mexico, Oregon, Utah
and Washington – allow undocumented
immigrants to get driver’s licenses,
but that number is scheduled to drop
to six in February, when Oregon
halts the practice.
In
addition, Maine is considering
imposing a residency requirement,
and Michigan Secretary of State
Terri Lynn Land (R) is pushing
legislation to begin barring
undocumented immigrants from getting
licenses. Both North Carolina and
Tennessee stopped issuing licenses
to undocumented residents since
2006.
Supporters of licensing for
undocumented immigrant drivers say
it helps authorities know who’s on
the road, encourages foreign
motorists to buy insurance and
decreases tension between police and
immigrants.
The
issue proved so controversial that
New York Gov. Eliot Spitzer (D) was
forced to rescind his plan last fall
to issue driver’s licenses to
undocumented immigrants. Some county
officers had threatened to boycott
the order.
Under
the 2005 Real ID Act, which takes
full effect in 2013, security of
driver’s licenses in all states will
be tightened. The law requires
states to confirm the legal
residency of applicants for all
driver’s licenses in the state to
qualify as official identity for
boarding airplanes or entering
federal buildings. States would have
to issue a separate type of license
if they wanted to continue giving
driving privileges to undocumented
immigrants.
Utah
is the only state to issue a
different sort of license for
drivers, including immigrants,
without Social Security numbers. The
state’s “driver privilege card” is
clearly marked as “not valid
identification for Utah government
entity.”
Under
“Operation Jump Start,” Bush sent
6,000 National Guard soldiers
starting in July 2006 to help the
Border Patrol in Arizona,
California, New Mexico and Texas.
By
doing administrative tasks normally
handled by Border Patrol officers,
the guardsmen allowed federal agents
to focus on catching undocumented
immigrants and drug smugglers. The
troops don’t actually catch border
crossers; that responsibility
remains with the Border Patrol.
Apprehensions along the Mexican
border for the federal fiscal year
ending Sept. 30 dropped to their
lowest point in at least a decade,
marking a 20 percent decline from
the year before. Border Patrol
agents caught 858,638 people trying
to enter the country undocumented in
the fiscal year.
The
Pew Hispanic Center, in a May
report, highlighted other
indications that immigration from
Mexico had slowed since mid-2006,
when Operation Jump Start began.
Military planners expect the
National Guard to wind down its
operations supporting the Border
Patrol by July, under Bush’s
original plan.
