With feds stuck, states take on immigration

By: - December 13, 2007 12:00 am

(Updated 1:30 p.m. EST, Dec. 17, 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 illegally. Some states are rolling out welcome mats while others are slamming shut their doors.


For example, Oklahoma lawmakers signed off on a sweeping anti-illegal 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 1970s: 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 illegal) 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 illegal 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 illegal immigrants from becoming social workers, but Hawaii started letting undocumented children get state-supported health care.


State-by-state policies

All told, 46 states enacted 194 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 illegal immigrants outnumbered laws benefiting them by a 2-1 ratio, although roughly half did not deal specifically with illegal 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 illegal 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 illegal 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 illegal 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 illegal immigrants born in the United States, who are automatically U.S. citizens. Gubernatorial candidates in North Carolina want to bar illegal 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 Hazleton, Pa., which tried to prevent locals from hiring or renting to illegal 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 illegal immigrants, in part to encourage undocumented residents to report crimes to police.


While courts weigh the legality of housing and hiring restrictions for illegal immigrants, California’s legislators refused to wait and in 2007 prohibited its cities from enacting Hazleton-style ordinances.


The backlash against immigration is affecting the Latino 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 1999 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 illegal immigrants.


Nearly two-thirds of all Hispanics say Congress’ failure to resolve the immigration issue has made life more difficult for all Latinos, 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.org , 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 “E-Verify” 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 1986 federal law prohibits states from imposing criminal or civil penalties on employers who hire illegal 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 illegal 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 illegal 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 E-Verify , 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, told Stateline.org 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 E-Verify 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 illegal. The state has agreed not to enforce the law pending the outcome of the case.


Law enforcement


Normally, when local and state police arrest someone they suspect is here illegally, 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 1996, 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 illegal 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 1982 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 illegal 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 illegal 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 illegal immigrants.


On the other hand, the federal government bars illegal 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 illegally 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 illegal immigrants.


In 1994, California voters overwhelmingly approved Proposition 187, a ballot measure that would have stopped taxpayer-funded education, social services and most medical care to illegal 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 illegal immigrants, vetoing legislation to expand in-state college tuition to illegal 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 illegal 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 ,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 1996 federal law. The Illegal Immigration Reform and Immigrant Responsibility Act bars states from offering in-state benefits to illegal 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 illegal 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 illegal 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. 

Driver’s licenses


Only seven states – Hawaii, Maine, Michigan, New Mexico, Oregon, Utah and Washington – allow illegal 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 illegal immigrants from getting licenses. Both North Carolina and Tennessee stopped issuing licenses to undocumented residents since 2006.


Supporters of licensing for illegal 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 illegal 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 illegal 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.”


National Guard


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 illegal 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 illegally 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.

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