Litigation Update: Counties Sue New York State Over Driver’s Licenses

by Kendra Sena*

Updated on September 25, 2019.

Background

In June 2019, New York passed the Driver’s License Access and Privacy Act (Green Light NY), a law that would permit undocumented New Yorkers to apply for a state driver’s license.  The law is set to go into effect in December 2019.

In New York, most Department of Motor Vehicles (DMV) offices are not operated by the state agency directly; instead, independently elected county clerks act as agents of the DMV, and are responsible for issuing driver’s licenses in most counties.[1]  But many county clerks have expressed their intent to defy the law and refuse to issue licenses to newly eligible immigrants.2  The consequences to the clerks of refusing to administer the law are potentially severe:  the New York State Constitution gives the governor the authority to remove an elected county clerk from office,3 though the power has not been invoked since 1932.4

Litigation

A few weeks after the Green Light NY bill was signed into law, Erie County Clerk Michael Kearns filed a suit in federal court challenging the law as unconstitutional.5  Shortly thereafter, Rensselaer County Clerk Frank Merola filed a similar suit.6  In late August, Monroe County Executive Cheryl Dinolfo filed a third suit.7  Although fourteen states plus Washington, D.C., and Puerto Rico have laws to issue driver’s licenses regardless of immigration status,8 the lawsuits in New York mark the first time local officials have sued a state for issuing driver’s licenses to undocumented immigrants.

The lawsuits claim that the Green Light NY law is preempted by federal law.  Under the Supremacy Clause of the U.S. Constitution, when there is a conflict between a state law and a federal law, the federal law overrides the state law.  There are two types of preemption: express and implied.  Express preemption occurs when a federal law explicitly states that it supersedes state law.  Implied preemption occurs when, despite there being no explicit preemption, either:

  • state law and federal law are in conflict;
  • state law frustrates federal law; or
  • the federal law and regulation in an area is so comprehensive as to occupy the field.

The Monroe suit makes an additional claim that the Green Light NY law violates the Equal Protection Clause of the U.S. and New York State Constitutions.  The Equal Protection Clause guarantees that the government will not unfairly discriminate against classes of people when it passes or enforces laws.  To satisfy the Equal Protection Clause, a government classification must be supported by sufficient justification.  Depending on the type of classification, courts will apply one of three types of review:  strict scrutiny, intermediate scrutiny, or rational basis review.  A law that fails to pass equal protection review is unconstitutional.

Each suit asks the court to rule that the Green Light NY law is unconstitutional and to stop its implementation.  The following sections explain the specific claims the counties make.

Claims and Analyses

Summary and Analysis:  Neither Congress nor the federal courts has settled on a single definition of “harboring.”  In the Second Circuit (the federal jurisdiction that includes New York), there are three elements that must be proved: (1) the noncitizen is unlawfully present in the U.S.; (2) the defendant knew or recklessly disregarded the status of the unlawfully present person; and (3) the defendant took actions that both helped an unlawfully present person to remain in the U.S. and prevented authorities from detecting the person’s presence.9

Most prosecution for harboring arises in the employment context, though mere employment of undocumented workers is not enough.  Courts have found employers guilty of harboring when they employ undocumented workers and take affirmative actions that shield the person from detection and make it easier for them to remain in the U.S.  For example, the Second Circuit found harboring when an employer induced a worker to falsify work authorization documents and to change her name when the employer was under investigation.[1]0  Litigation also arises in the housing context when, in addition to providing shelter, a person takes actions that help an undocumented person to remain in the U.S. and prevent authorities from detecting them.  The Second Circuit found a person liable for harboring when they maintained several houses to provide shelter for large numbers of undocumented people, provided transportation for them to and from work, and helped arrange sham marriages.[1][1]

The clerks argue that by providing driver’s licenses to people who are in the U.S. without authorization, the Green Light NY Law helps people who are unlawfully present in the U.S. to remain in the U.S.  And because the law bars the DMV from disclosing applicants’ records without a judicial warrant, the counties argue that the law shields unlawfully present people from detection.

In its motion to dismiss the Kearns complaint, the State responds that (1) the Green Light NY law forbids the counties from asking an applicant about their immigration status, and because citizens and lawfully present noncitizens are also eligible for standard (not for federal purposes) licenses under the Green Light NY law, the counties cannot assume that all applicants are undocumented; (2) the issuance of a driver’s license is not the kind of conduct prohibited by federal law; even if a driver’s license facilitates a noncitizen’s continued unlawful presence in the U.S., it is not done specifically to prevent immigration authorities from detecting the noncitizen; (3) the Green Light NY law protects certain documents from disclosure, but the federal law is meant to address harboring of people not documents; and (4) there is no credible threat of prosecution as no official in any other state that issues driver’s licenses to undocumented residents has ever been prosecuted under the harboring statute.

Summary and Analysis:  Federal law makes it unlawful to knowingly employ unauthorized workers.  To be authorized to work, a person must have a valid social security number or other work authorization issued by the federal government.  Many types of immigrants are eligible for work authorization, including asylees and refugees, beneficiaries of Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS), some student-visa holders, and many others.  Undocumented people are not generally eligible for work authorization.  Employers who violate the law may be subject to fines and criminal prosecution.

The U.S. Supreme Court has previously struck down government action that frustrates this law.  In Hoffman Plastics, the Supreme Court reversed an administrative award of back pay for unauthorized workers who had been unlawfully fired for union activity.[1]3  Back pay—wages that workers would have earned had they not been unlawfully terminated— is a remedy typically available to people with work authorization.  But the Court reasoned that without work authorization the workers were “unavailable” to work, and an award of back pay would be inconsistent with the federal laws that aim to curb the employment of unauthorized workers.[1]4  The Court relied on its analysis in a prior case that held that unauthorized workers were not eligible to be reinstated after they were wrongfully terminated. [1]5  In Arizona v. U.S. the U.S. Supreme Court struck down a state law that aimed to impose criminal sanctions on unauthorized workers for seeking employment—a consequence not imposed by federal law.  Reasoning that the federal law intentionally avoided imposing criminal penalties on unauthorized workers, choosing instead to sanction employers, the Court held that the “state law to the contrary is an obstacle to the regulatory system Congress chose.” [1]6

The counties claim that the Green Light NY law intentionally interferes with federal efforts to combat the employment of unauthorized workers.   In justifying the proposed law extending driving privileges to undocumented New Yorkers, bill sponsors in the Senate and Assembly noted that undocumented people need driver’s licenses in order to get to and from work.[1]7  But because undocumented people are not generally eligible for work authorization, the counties say the New York law encourages the unlawful employment of unauthorized workers and frustrates federal law.

In its motion to dismiss the Kearns complaint, the State responds that the federal law deliberately regulates the conduct of employers rather than the workers themselves or others who facilitate the unlawful employment.  Because the Green Light NY law does not regulate any employer conduct, permit employers to hire workers, or confer the license holders with work authorization, the law does not conflict with federal prohibitions on employment of unauthorized workers.

Summary and Analysis:  In 1996, Congress passed two laws under which state and local governments may not prohibit communication with the federal government about the immigration status of any person, 8 U.S.C. § 1644 and 8 U.S.C. § 1373.  Shortly after the laws were enacted, the City of New York challenged the validity of the laws under the anticommandeering principles of the Tenth Amendment, which prohibit the federal government from compelling states to adopt or enforce federal laws.  The city was defending its long-standing executive order that prohibited New York City officials from sharing immigration-status information with federal immigration authorities.  The Second Circuit ruled against the city, upholding the federal laws as constitutional.  The court reasoned that while the federal government could not compel state and local governments take certain actions to administer federal programs, it was constitutional for the federal government to prohibit states from taking certain actions that would frustrate federal programs.[1]8  In response, the city changed its order; rather than prohibit the sharing of immigration-status information, the new order (which is still in effect) prohibits the gathering of immigration-related information except in limited circumstances.[1]9

But a recent U.S. Supreme Court case has done away with the distinction drawn by the Second Circuit.  In Murphy v. NCAA, the Supreme Court held unconstitutional a federal statute that prohibited states from authorizing sports gambling.20  The Supreme Court reasoned that the distinction between an attempt to compel a state to act or to prohibit a state from acting is an empty one; any attempt to dictate what state legislatures may and may not do is a violation of the anticommandeering principles of the Tenth Amendment.2[1]  In light of this ruling, one federal court in New York has ruled that 8 U.S.C. § 1373 is unconstitutional.22  The Second Circuit has not ruled on provisions that prohibit the gathering of immigration-related information, nor has it considered whether 8 U.S.C. § 1644 and 8 U.S.C. § 1373 will survive in light of Murphy.

The Green Light NY law prohibits the disclosure of any records or information maintained by the state or local agent to immigration enforcement authorities absent a court order or judicial warrant.  The county claims that this information-sharing prohibition conflicts with the federal laws.

In its motion to dismiss the Kearns complaint,23 the State responds that (1) because federal law grants states the choice as to whether to report otherwise protected personal information to other state and federal agencies, the Green Light NY law is an exercise of the State’s discretion to decide when such permissive disclosures are appropriate; (2) federal law does not create any affirmative obligations to disclose immigration status information; and (3) because the Green Light NY law prohibits state and local agents from inquiring about the immigration status of an applicant for a non-federal-use driver’s license, government agents will not have any relevant immigration-status information to communicate at all.

Summary and Analysis:  Federal law makes it a crime for a noncitizen to vote “in any election held solely or in part for the purpose of electing a candidate for federal office.”24  A noncitizen who votes in a federal election can be fined, imprisoned, or removed from the United States—even if they did not know they were ineligible to vote.25  The county argues that because the Green Light NY law permits people who are ineligible to vote in a federal election to obtain a driver’s license, and because a driver’s license is sufficient documentation to register to vote in New York, that the state law is preempted by the federal law.

The State has yet to respond to this argument, but may reply that (1) the issuance of a driver’s license is fairly attenuated to the act of voting; (2) all states routinely issue driver’s licenses to people who are ineligible to vote in federal elections, including people under the age of 18, lawful permanent residents (“Green Card” holders) and other noncitizens, and some people who have been convicted of a felony; and (3) the federal statute at issue criminalizes the actions of a noncitizen voter, not the actions of a state or local government that erroneously accepted a voter registration or permitted an ineligible voter to cast a vote in a federal election.

Summary and Analysis:  A state or local law is preempted when the federal law and regulation in an area is so comprehensive as to occupy the field.  Courts have found field preemption in areas where there is a clear and dominant interest in national uniformity, such as nuclear safety regulation,26 or where Congress has enacted a comprehensive statutory framework that demonstrates its intent to occupy a field, such as with “alien registration.”27  This means that even complementary state or local laws are preempted.  For example, the U.S. Supreme Court struck down an Arizona statute that made it a crime under state law for an immigrant to fail to carry their “alien registration document” as required by federal law.  Although the state statute mirrored the federal statute in that it imposed a penalty for failing to carry the document, the Court reasoned that “[w]here Congress occupies an entire field, as it has in the field of alien registration, even complementary state regulation is impermissible.”28  But not all state or local laws that have to do with immigrants are field-preempted.  The U.S. Supreme Court has upheld state laws that affect immigrants but do not interfere with the comprehensive scheme laid out by federal law.  For example, the Court found that a state law that revoked an employer’s business license for hiring unauthorized workers was not preempted by federal law.29

The counties argue that the federal government has exclusive authority over the field of immigration law, and that the Green Light NY law is therefore preempted.

In its motion to dismiss the Kearns complaint, the State responds that (1) only the federal government may bring a claim based on the supremacy clause in the immigration context; (2) the issuance of driver’s licenses is not within the field of immigration regulation exclusively governed by federal law; (3) the State has broad authority to govern matters of public safety, including issuing driver’s licenses, even if those laws have some effect on immigration; and (4) federal law recognizes that states are permitted to issue driver’s licenses without regard to immigration status.

Summary and Analysis:  The Equal Protection Clause guarantees that the government will not unfairly discriminate against classes of people when it passes or enforces laws.  The Equal Protection Clause is applicable when a government action unjustifiably burdens or benefits one group of people but not other similarly situated people.  That is not to say that the government may not make distinctions between classes of people; a government classification is lawful so long as it is supported by sufficient justification.  Depending on the type of classification, courts will apply one of three types of review:  strict scrutiny, intermediate scrutiny, or rational basis review.

The most stringent type of review, strict scrutiny, will apply when the law in question relates to a fundamental right or a suspect classification.  Fundamental rights include the right to vote, the right to move freely between the states, and the right to marry.  Suspect classifications include race, national origin, religion, and alienage.  A law that limits a fundamental right or that involves a suspect classification must pass strict scrutiny; the law must further a “compelling governmental interest,” and must be narrowly tailored to achieve that interest. When courts apply strict scrutiny, they almost always strike down the government action being challenged.  A court will use intermediate scrutiny to evaluate a law that discriminates by sex or gender.  To pass intermediate scrutiny, the law must be substantially related to an important governmental interest.  For most all other classifications, courts will use the lesser rational basis standard of review, under which the state need only show that the classification bears a rational connection to a legitimate state interest. Laws that are subject to rational basis review almost always survive challenge.

The county argues that the Green Light NY law violates the Equal Protection Clause because it treats undocumented immigrants better than it treats U.S. citizens and lawful residents.  Under the Green Light NY law, people with social security numbers are required to provide their social security number to apply for a driver’s license. All U.S. citizens have social security numbers, and so do some, but not all, noncitizens. Noncitizens without social security numbers may submit an affidavit stating that they have not been issued a social security number, and must also provide a valid foreign passport, consular identification document, or foreign driver’s license to be eligible for a standard (not for federal purposes) driver’s license.

The county argues that the Green Light NY law “requires less intrusive and less reliable proof of identity from” undocumented immigrants who don’t have social security numbers than from citizens and immigrants with social security numbers.  Because New York shares driver’s license data with state and federal agencies, the county claims that those who have submitted their social security numbers will have their identities shared while those without social security numbers will have their identities shielded.

The State has yet to reply to this argument, but may offer some variation on three replies.  First, the State may say that equal protection is irrelevant here because the classes (people with and without social security numbers) are not similarly situated. Under federal law, the state cannot issue the same kinds of driver’s licenses to people who have social security numbers and people who do not. People with different kinds of licenses are not similarly situated.  Second, the State may argue that equal protection is irrelevant because there is no differential treatment; all driver’s licenses and associated identifying information are a part of the same database that is shared with state and federal agencies. Finally, the State may say that even if equal protection does apply, the state satisfies the low burden of rational basis review; the heightened scrutiny required for alienage discrimination does not apply where a party alleges preferential treatment for immigrants.

Further Reading

The Government Law Center publishes explainers—short policy papers—designed to help policymakers and others understand the complex laws that apply to state and local governments’ choices about immigration policy.  Each explainer briefly reviews the law in a specific area, and provides links to further resources.  For more information on driver’s licenses for undocumented immigrants, and other issues related to state and local governments and immigration law, see the Government Law Center’s explainer series, available at: albanylaw.edu/glc/immigration.

Endnotes

* Kendra Sena is the Senior Staff Attorney at the Government Law Center at Albany Law School.

[1] In 51 of the state’s 62 counties, the county clerk serves as an agent of the Commissioner of Motor Vehicles and is responsible for operating the Department of Motor Vehicles office and issuing driver’s licenses.  See N.Y.S. Vehicle and Traffic Law § 205.  Excepted are the clerks of the counties of Rockland, Albany, Westchester, Suffolk, Nassau, Onondaga, Bronx, Kings, Queens, Richmond, and New York.

2 Christina Goldbaum, “Rebellion by County Clerks Over N.Y. Licenses for Undocumented Immigrants,” The New York Times, June 21, 2019, https://www.nytimes.com/2019/06/21/nyregion/drivers-licenses-undocumented-ny.html.

3 N.Y. Const. art. XIII, § 13 states, in part: “The governor may remove any elective sheriff, county clerk, district attorney or register within the term for which he or she shall have been elected; but before so doing the governor shall give to such officer a copy of the charges against him or her and an opportunity of being heard in his or her defense.”

4 The only governor to invoke the power to remove an independently elected official was Franklin D. Roosevelt who, in 1932, removed New York County Sheriff Thomas M. “Tin Box” Farley from office as part of a Tammany Hall scandal.  “Farley Is Removed; Unexplained Funds Sole Basis of Action; Roosevelt Rules Sheriff Failed to Meet High Standard Set for Public Officials,” The New York Times, Feb. 25, 1932, www.nytimes.com/1932/02/25/archives/farley-is-removed-unexplained-funds-sole-basis-of-action-roosevelt.html.

5 Kearns v. Cuomo, et al., No. 19 cv 902 (W.D.N.Y. filed Jul. 8, 2019).

6 Merola v. Cuomo, et al., No. 19 cv 899 (N.D.N.Y. filed Jul. 24, 2019).

7 County of Monroe, et al., v. Cuomo, et al., No. 19 cv ___ (W.D.N.Y. filed Aug. 29, 2019).

8 National Immigration Law Center, “State Laws Providing Access to Driver’s Licenses or Cards, Regardless of Immigration Status,” (August 2019), https://www.nilc.org/issues/drivers-licenses/state-laws-providing-dl-access/.

9 See U.S. v. Kim, 193 F.3d 567 (2d Cir. 1999) (holding that harboring “encompasses conduct tending substantially to facilitate an alien’s remaining in the U.S. illegally and to prevent government authorities from detecting [the immigrant’s] unlawful presence”) citing U.S. v. Lopez, 521 F.2d 437 (2d Cir. 1975), cert denied 423 U.S. 995 (1975)).

[1]0 Id.

[1][1] See U.S. v. Lopez, 521 F.2d 437 (2d Cir. 1975), cert denied 423 U.S. 995 (1975).

[1]2 The Kearns complaint refers to the Immigration Control and Reform Act of 1986, the parts of which referring to the employment of unauthorized workers are codified in 8 U.S.C. § 1324a.

[1]3 See Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002).

[1]4 Id.

[1]5 See Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984).

[1]6 See Arizona v. United States, 567 U.S. 387, 389 (2012).

[1]7 See A.B. 3675, 2019-20 Leg. Sess., Sponsor’s memorandum, (NY 2019), available at https://www.nysenate.gov/legislation/bills/2019/A3675 ; S.B. 1747B, 2019-20 Leg. Sess., Sponsor’s memorandum (NY 2019), available at https://www.nysenate.gov/legislation/bills/2019/s1747.

[1]8 See New York v. United States DOJ, 343 F. Supp. 3d 213 (S.D.N.Y. 2018).

[1]9 See N.Y.C., N.Y., Exec. Order No. 41, ss.1-2 (Sept. 17, 2003), https://www1.nyc.gov/assets/immigrants/downloads/pdf/eo-41.pdf.

20 See Murphy v. NCAA, 138 S. Ct. 1461 (2018).

2[1] Id. at 1475.

22 See New York v. U.S. Dep’t of Justice, 343 F. Supp. 3d 213, 244 (S.D.N.Y. 2019).

23 Although the Kearns complaint does not reference these statutes, the State’s motion to dismiss addresses the issue.  See Motion to dismiss at n.9, Kearns v. Cuomo, et al. No. 19 cv 902 (W.D.N.Y. filed Jul. 8, 2019).

24 18 USC § 611(a).

25 See Fitzpatrick v. Sessions, No. 15-2204 & 16-1864 (7th Cir. 2017).

26 See Va. Uranium, Inc. v. Warren, 587 U.S. _ (2019).

27 See Arizona v. United States, 567 U.S. 387 (2012).

28 Id.

29 See Chamber of Commerce v. Whiting, 563 U.S. 582, 587 (2011).

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State Criminal Law and Immigration:  How State Criminal-Justice Systems Can Cause Deportations, or Limit Them

by Kendra Sena*                     

The Government Law Center’s explainers concisely map out the law that applies to important questions of public policy.

This explainer was updated on May 6, 2019.

Introduction

While the federal government makes the ultimate decision whether to admit or deport a noncitizen, the states often play a crucial role.  Several provisions of federal immigration law that trigger deportation depend in large part on crimes that are defined, charged, and sentenced at the state level.  Even a conviction for a low-level crime for which a state imposes no jail time can result in serious immigration consequences—including deportation.

Some states are adopting policies to take account of the immigration consequences of criminal convictions.  This explainer will briefly review the intersection of state criminal law and federal immigration law.  It will then outline several ways in which states are exercising their authority over state criminal law and procedure to influence federal immigration enforcement.

I.  Background: Crimmigration

The intersection between immigration and criminal law is highly complex.  Although immigration proceedings are civil matters, some criminal convictions may make a noncitizen deportable or inadmissible under federal law.  This interplay between immigration law and criminal law is often referred to as “crimmigration.”[1]

The Immigration and Nationality Act (INA), the federal law that governs immigration, includes a broad set of crimes for which a conviction may make a noncitizen—even a lawful, permanent resident—deportable or ineligible for certain immigration relief.  This includes both federal and state crimes, many of which are not defined in the INA.

Several provisions of the INA set out only a category of crimes for which a conviction will trigger immigration consequences.  For example, a noncitizen may be deported for having committed a “crime involving moral turpitude” or an “aggravated felony.” Whether specific crimes count as crimes involving moral turpitude, or aggravated felonies, depends on a state’s definition of the crime and the potential sentence permitted under state law.  This means that the same criminal acts may trigger deportation if committed in one state, but not if committed in another state.

Recognizing the highly complex and technical laws involved, and the seriousness of deportation as a consequence of a criminal plea, the United States Supreme Court’s 2010 case Padilla v. Kentucky held that defense attorneys are constitutionally obligated to advise their clients about whether their plea carries a risk of deportation.[2]  The Padilla decision injected immigration law directly into the practice of criminal defense attorneys, prosecutors, and judges alike.[3]  Failure to advise a noncitizen client about the immigration consequences of their plea is ineffective assistance of counsel under the Sixth Amendment for which a defendant may seek post-conviction relief.[4]

II. State efforts to limit immigration consequences of criminal convictions

Since the Supreme Court’s ruling in Padilla, many states have made changes to their criminal systems to take into account the immigration consequences of criminal convictions for noncitizen defendants.

Padilla counsel.  In 2011, the state of New York authorized funding for immigration-related legal support, training, and resources to assist indigent-defense and family-law attorneys in complying with the mandate of Padilla.[5]  The result was the nation’s first statewide network of immigration assistance centers to advise criminal and family court attorneys on immigration law.[6]  The six Regional Immigration Assistance Centers (RIAC) issue advisory letters that analyze the potential immigration consequences of a case disposition and offer possible dispositions that reduce the immigration impact on the noncitizen.[7]

Prosecutorial discretionSome prosecutors have changed the way that they charge low-level and nonviolent offenders to take into account the potential immigration consequences of a conviction.  In 2016, California enacted a statewide law mandating that prosecutors “consider the avoidance of adverse immigration consequences in the plea negotiation process” for all cases.[8]  Elsewhere, individual prosecutor’s offices have adopted similar practices.  In Baltimore, the state’s attorney instructed the office’s prosecutors to consider the “unintended collateral consequences that our decisions have on our immigrant population.”[9]  In Brooklyn, NY, and Philadelphia, PA, the district attorneys’ offices have hired immigration counsel to train prosecutors on how to minimize the risk of deportation for noncitizens charged with low-level and nonviolent offenses.[10]

Executive pardons.  In some instances, states have the power to remove immigration consequences associated with past convictions.  For most crimes, a state governor’s pardon has the effect of erasing a conviction for immigration purposes and protecting a noncitizen from deportation on account of the conviction.[11]  For some crimes—drug and firearm convictions, for example—a governor’s pardon may remove the automatic deportation trigger, giving the immigration judge the discretion to issue relief.

In 2000, the Georgia Board of Pardons and Parole made two key procedural changes to its pardon process in order to protect noncitizens at risk of deportation because of convictions for low-level state crimes.  First, the Board opened its pardon process to misdemeanors, and second, it waived the otherwise applicable eligibility waiting period.  In a 15-month period, the Board pardoned 138 legal permanent residents at risk of deportation—all of whom had either a U.S. citizen spouse or children and all but one of whom had been convicted of only a misdemeanor.[12]

State governors in New York and California have recently exercised their discretion in this space, commuting the sentences of people convicted of crimes that carry the potential for immigration consequences.[13]  In California, a new law requires the state parole board to consider an expedited review of pardon applications from people at risk of deportation.[14]

Reducing misdemeanor sentences.  A noncitizen can be subject to deportation for a single conviction of a crime involving moral turpitude or an aggravated felony when the potential sentence for the crime is a year or more.  The immigration law does not define a crime of moral turpitude, but courts have explained that it includes theft and fraud crimes—even misdemeanors like petit larceny or passing a bad check.  Even when a person doesn’t spend a single day in jail, conviction for a crime involving moral turpitude with the potential for a one-year sentence makes deportation automatic.  Similarly, a conviction for an aggravated felony, for immigration purposes, often includes misdemeanor crimes.  Possession of stolen property, forgery, or failure to appear in court—often misdemeanors under state law—render a noncitizen deportable when a sentence of a year or more is imposed.[15]

New York recently became the fifth[16] state to amend its criminal laws to reduce the maximum penalty for misdemeanors from 365 days to 364 days in order to remove those crimes from the class of convictions that trigger deportation and inadmissibility.[17]

Decriminalization.  States have broad authority to define classes of unlawful behavior.  Unlawful acts that are less than criminal—infractions or violations, for example—do not typically come along with the same constitutional guarantees (e.g., right to counsel) as for criminal activity.  For this reason, sanctions for noncriminal offenses will not usually constitute convictions for immigration purposes.[18]

Some states have moved to decriminalize certain unlawful behaviors so as not to subject noncitizens to detention and deportation based on these low-level violations.  In 2018, California passed a law decriminalizing street vending after a widely-publicized incident in which a woman who had been arrested for selling corn in a public park was held in immigration custody for 6 months.[19]  Under the new law, local governments are permitted to set up regulatory structures to regulate street vending; vendors who violate local regulations are subject to administrative penalty only.[20]

Notably, a state’s decision to decriminalize the possession, use, or sale of cannabis (marijuana) will not remove some immigration consequences associated with it.  The U.S. Department of Justice recently issued a policy alertto indicate that a noncitizen may be found to lack the “good moral character” necessary to become a U.S. citizen because of their involvement with cannabis, “even where such activity is not a criminal offense under state law.” [21]

Conclusion

The federal government has exclusive authority to determine which noncitizens it will permit to enter and remain in the country.  But immigration law relies heavily on the states to define crimes that trigger deportation of noncitizens.  Because the states enjoy exclusive authority over state criminal laws, states have the ability to influence federal immigration enforcement.    No state-law measure could take away the federal government’s power over the nation’s immigration laws and enforcement.  But some states are exercising their authority at the intersection of criminal and immigration law to exert some measure of control over the effect that states’ actions have on the immigration status of people who encounter their criminal-justice systems.

Endnotes

* Kendra Sena is the Senior Staff Attorney at the Government Law Center at Albany Law School.

[1] Professor Juliet Stumpf has been credited with coining the term “crimmigration” in her article, The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power, 56 Am. U. L. Rev. 367, 376 (2006).

[2] Padilla v. Kentucky, 559 U.S. 356 (2010).

[3] García Hernández, César Cuauhtémoc, Deconstructing Crimmigration, 52 U. C. Davis L. Rev. 197, 198 (2018).

[4] See Lee v. U. S., 582 U.S. ___ (2017) (holding that a defendant can show prejudice from their counsel’s deficient performance in plea proceedings by establishing that there is a reasonable probability that but for counsel’s errors, they would not have pled guilty).

[5] See N.Y.S. Office of Indigent Legal Services, Regional Immigration Assistance Centers, https://www.ils.ny.gov/content/riac-general-information (last visited May 7, 2019).

[6] See Press Release, N.Y.S. Office of Indigent Legal Services, “ILS Awards Grants for Regional Immigration Assistance Centers,” (Jul. 6, 2015), available at: https://tinyurl.com/y3fcx2tk.

[7] See e.g., Oneida County, Public Defender – Criminal Division, Regional Immigration Assistance Center-2, “What We Do,” http://www.ocgov.net/pdcriminal/RIAC2/WhatWeDo (last visited May 7, 2019).

[8] Assemb. Bill 1343, 2015–2016 Reg. Sess. (Cal. 2015).

[9] Press Release, Office of the State’s Attorney for Baltimore City, “States Attorney Marilyn Mosby Instructs Her Office to Strongly Consider Prosecutorial Discretion for Cases Involving Immigrant Defendants, Witnesses, and Victims” (May 4, 2017), available at: http://tinyurl.com/yanatg4b.

[10] See Press Release, Brooklyn District Attorney’s Office, “Acting Brooklyn District Attorney Eric Gonzalez Announces New Policy Regarding Handling of Cases against Non-Citizen Defendants,” (Apr. 24, 2017), available at: https://tinyurl.com/y8dz2m8x; Alicia Victoria Lozano, “Philadelphia District Attorney’s Office Trains 300 Attorneys to Protect Immigrant Rights,” NBC Philadelphia, (Jan. 24, 2019), https://tinyurl.com/y2r724hm.

[11] INA § 237(a)(2)(A)(vi).

[12] Elizabeth Rapaport, The Georgia Immigration Pardons: A Case Study in Mass Clemency, 13 Federal Sentencing Reporter 184 (2001).

[13] See, e.g., Melissa Gira Grant, “California Governor Jerry Brown is Fighting Trump with Pardons. Will Other Governors Follow Suit?” The Appeal, Nov. 29, 2018, https://tinyurl.com/y2q48dtv; John Leland, “With a Fresh Swipe at Trump, Cuomo Pardons 22 Immigrants,” The New York Times, Dec. 21, 2018.

[14] Agnes Constante, “New California Pardon Law May Help Those Facing Deportation,” NBC News, Oct. 3, 2018, https://tinyurl.com/y9qgzsga.

[15] American Immigration Council, “Aggravated Felonies: An Overview,” (Dec. 2016), https://www.americanimmigrationcouncil.org/research/aggravated-felonies-overview.

[16] The other states are: California, Nevada, Utah, and Washington.

[17] Jason Stevenson & Marina Lowe, “Utah Passed a Law to Protect Noncitizens From Automatic Deportation,” ACLU, April 9, 2019, https://tinyurl.com/yylqbuow.

[18] Leticia Saucedo, States of Desire: How Immigration Law Allows States to Attract Desired Immigrants, 52 U.C. Davis Law Review 471, 499 (2018).

[19] Kristina Bravo, “Gov. Brown Signs Bill Legalizing Street Vending,” KTLA Broadcasting (Sept. 17, 2018), https://ktla.com/2018/09/17/gov-brown-signs-bill-legalizing-street-vending-in-california/.

[20] Public Counsel Law Center, “Legislative Alert: SB 946 – Safe Sidewalk Vending Act,” (Dec. 2018), http://www.publiccounsel.org/tools/assets/files/1100.pdf.

[21] U.S. Dept. Homeland Sec., U.S. Citizenship and Immigration Services, Policy Alert, “Controlled Substance-Related Activity and Good Moral Character Determinations,” April 19, 2019, https://tinyurl.com/y6366zbv.  The amendment to the USCIS Policy Manual can be found in Volume 12: Citizenship and Naturalization, Part F, Good Moral Character, Chapter 5, Conditional Bars for Acts in Statutory Period [12 USCIS-PM F.5].

NYS Enacts Help for Parents Facing Deportation

New state laws amend standby guardianship and general obligations law parental designation statutes

By Gerard Wallace, Esq.[1]

 Parents[2] who are at risk of deportation face difficult decisions regarding the care of their citizen minor children.  If they choose to leave children here in the United States – even temporarily – they must decide how to provide a non-parent with the legal authority for caregiving.[3]

New strategies for parents and children are needed because of the dire circumstances and widespread dragnet of persons at risk of deportations that are sweeping across the country. Federal enforcement agencies, Homeland Security or U. S. Citizenship and Immigration Service (USCIS), are at the center of media and advocate reports on the ramping up of searches, arrests, detentions, and deportations of undocumented residents.

In June of 2018, New York Governor Andrew Cuomo signed into law two new provisions aimed to improve strategies for non-parental care of children by amending New York’s standby guardianship (Chapter Law 79) and parental designation (Chapter 80) laws. This memo will outline the legal and political landscape that has made these laws imminently necessary, as well as two procedures for designating parental authority to non-parents.

Who Is Facing Detention and Deportation?

Statistics from national surveys, administrative data and other sources of information regarding the number of persons who may face detention and deportation vary,[4] but estimates generally place the total population at about 11.1 million, or approximately 3 percent of the U.S. population.[5]

Detention is the practice of incarcerating immigrants while they await a determination of their immigration status or potential deportation. Once detained by Immigration and Customs Enforcement (ICE) and its Enforcement and Removal Operations (ERO), bond is unlikely and deportation likely, because of a recent U. S. Supreme Court decision that permits indefinite detention. A detainee may now be held until either the application proceeding is completed or until removal proceedings have been completed, denying bond hearings to thousands of immigrant applicants and asylum seekers.[6]

In 2016, the United States government detained nearly 360,000 people in a sprawling system of over 200 immigration jails across the country.

In addition to millions of undocumented immigrants, persons who are potentially subject to deportation also include Deferred Action for Childhood Arrivals Program (DACA) and persons with Temporary Protective Status (TPS).

DACA allows individuals who were brought to the United States as children to receive a renewable two-year period of deferred action from deportation and become eligible for a work permit in the U.S. A reported 793,026 people have received DACA initial approval, while 895,574 have received renewals.[7] These figures include 292,070 applications accepted and 273,000 approved in New York State.[8] Many DACA children are now adults who have children who were born in the United States. Plans to phase out DACA were initiated by the Trump Administration on September 5, 2017, allowing Congress six months to pass – a more permanent solution. [9]

The Trump administration has also said that it will terminate Temporary Protected Status for nearly 60,000 Haitians in July 2019, more than 262,000 Salvadorans in September 2019 and 57,000 Hondurans in January 2020.

Citizen Children Who Are Minors

Children who were born in the United States are citizens. They have birthright citizenship pursuant to the 14th Amendment of the U.S. Constitution:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.

Among the millions facing deportation, there are many parents with children who are United States citizens because they were born here, but who have not reached adulthood. Almost six million citizen children under the age of 18 live with a parent or family member who is undocumented.[10]  Additionally, a recent report from the Center for Migration studies estimates that more than 273,000 U.S.-born children have a parent with TPS from these countries.[11]  The number of DACA dreamers with minor citizen children is not known.

Options for Care of Citizen Children

In New York, a variety of custodial arrangements can provide care for children. Most involve court proceedings: state care and custody (foster care) via Family Court Act Article Ten abuse and neglect proceedings, surrenders for adoption (N.Y. Soc. Serv. Law §383), voluntary placement agreements (N.Y. Soc. Serv. Law §384a), or destitute child status (N.Y. Fam Ct. Act 10-C). In addition to state care, there are also private court ordered arrangements: adoption (N.Y. Dom. Rel. Law. §112b, guardianship (N.Y. Surr. Ct. Proc. Act §1700) and N.Y. Fam. Ct. Act §661, legal custody (N.Y. Fam. Ct. Act §651). A few informal custody arrangements do not require court proceedings: parental designation (N.Y. Gen. Oblig. Law §5 1551ff; and “persons in parental relationship” (N.Y. Educ. Law §3212; N.Y. Pub. Health Law §§2504, 2164).[12]

Court proceedings invariably will include scrutiny of the proposed non-parent caregiver and their household.  Investigations may involve criminal record checks, home studies, orders of protections records, domestic violence, sex offender, and child abuse registry checks, and caregiver residential histories.

For persons who may become caregivers of children whose parents are facing deportation, there are fears that such investigations may bring the unwelcome attention of federal immigration authorities.

Risk of ICE Identifying Undocumented Residents Because Of Court Proceedings

This memo does not attempt to describe how ICE may identify person involved in family court proceedings who are subject to deportation. However, it is important to provide some relevant information that illustrates the issues.

It is not uncommon for immigration authorities to obtain family court information by requiring individuals who are applying for immigration benefits or relief from removal to produce their family court records. Individuals are frequently compelled to produce records regardless of the privacy protections afforded by the New York Family Court Act and other state regulations. In other cases, immigration authorities discover family court information automatically through data-sharing agreements between state, local and federal agencies.[13]

Harmful immigration consequences can also be triggered when an Order of Protection is
issued by the Family Court and entered into the New York State Order of Protection Registry (“OP Registry”).[14]

An NYS Office of Court Administration Advisory Council on Immigration Issues in Family Court Memo: “Adverse Consequences to Family Court Dispositions”, examines in detail when family court proceedings may result in federal authorities identifying immigrants who may be subject to detention or deportation. The memo lays out the limited circumstances when information may reach federal authorities. But despite the apparent limitations, families are understandably suspicious and fearful that court proceedings could lead to arrests and detentions.

Standby Guardian and General Obligations Laws Provide “Springing” Powers for Provision of Care

At the end of the 2018 legislative session, New York’s Legislature passed two amendments that Governor Cuomo signed into law at a signing ceremony on June 24th in the Bronx. The two chapter laws amend statutes that provide for the designation of parental powers that may “spring up” upon the arrest, detention or deportation of a parent. The standby guardian written designation is valid for sixty days whereupon the named standby must file a petition for appointment (NY CLS SCPA § 1726(2)(d)(iv)). The parental designation (NYS General Obligations Law §§ 51551-55) does not require court appointment and thus may be of special importance when families wish to avoid the risks of unwanted attention from federal immigration officials.

Standby Guardianship Chapter Law 79 of the Laws of 2018

The Surrogate’s Court Procedure Act (SCPA) provides that a standby guardian can be appointed (NY CLS SCPA § 1726(1)(a)). “Standby guardian” means (i) a person judicially appointed … as standby guardian of the person and/or property of an infant whose authority becomes effective upon the incapacity, administrative separation, or death of the infant’s parent, legal guardian, legal custodian or primary caretaker or upon the consent of the parent, legal guardian, legal custodian or primary caretaker; and (ii) a person designated … as standby guardian whose authority becomes effective upon the death, administrative separation, or incapacity of the infant’s parent, legal guardian, legal custodian or primary caretaker or upon the debilitation and consent of the parent, legal guardian, legal custodian or primary caretaker.

The Chapter Law[15] amends the Surrogate’s Court Procedure Act to expand §1726, allowing designations for a “standby guardian” to include parents facing “administrative separation” i.e., detention or deportation, etc.

Administrative separation is defined as “A parent, legal guardian, legal custodian or primary caretaker’s (I) in connection with a federal immigration matter: arrest, detention, incarceration, removal and/or deportation; or (II) receipt of official communication by federal, state or local authorities regarding immigration enforcement which gives reasonable notice that care and supervision of the child by the parent, legal guardian, legal custodian, or primary caretaker will be interrupted or cannot be provided.”

Originally, this statute was enacted at the height of the AIDS crisis, to facilitate the immediate transfer of guardianship powers when a parent or a guardian can foresee their inability to care due to debilitating illness or death. In 2000, SCPA §1726 was amended to add a legal custodian or certain primary caretakers to designate or seek appoint of a standby guardians. Until June 27, 2018 the statute allowed a written designation of a standby guardian for their child in the event of their 1) incapacity, 2) debilitation and consent, or 3) death.  Designated standby guardians’ powers are valid upon the occurrence of the springing event, but only for sixty days, wherein the standby should seek to petition for guardianship. With the 2018 amendment, parents facing deportation can now complete the statutory designation form and know that if they are detained, their designated standby guardians can immediately care for children and can petition for appointment as their guardian.

Parental Designations Chapter Law 80 of the Laws of New York

The Chapter Law amends NYS General Obligations Law §§ 51551 and 1552 to extend the time period from six months to twelve months that a parent or guardian is permitted to name a caregiver as a person in parental relation, who has limited authority to make most decisions about schooling and medical care for a minor child or an incapacitated person.  Designation for periods beyond one month must be notarized and contain certain information. No court involvement is required for the designations, ensuring privacy for many parents who may be reluctant to bring attention to caregivers and their kin.  By extending the designation period to twelve months, the requirement of notarization becomes less onerous, particularly for parents residing outside the United States. Importantly, the authority may spring up upon a designated event or date.

The state Office of Children and Family Services (OCFS) has published a sample designation form. The form is available at the NYS Kinship Navigator and at OCFS web sites. See OCFS Form 4940 (06/2018).  The form’s section 4(d), pursuant to the statute, allows for the authority to spring up when a designated event happens.

The springing power is an especially useful tool for parents facing potential deportation or immigration detention because, just like the standby guardian springing power, it can be used to arrange care for children that springs up upon a stated condition, i.e. arrest, detention, etc.

In Chapter Law 79, the term “administrative separation” is defined as a suspension of care between parent and child caused by incarceration, removal and/or deportation, in connection with a federal immigration matter.  In drafting designations for parents facing detention/deportation, the springing power can borrow the language of the standby guardian Chapter Law regarding “administrative separation.”

The following language (copied from the standby guardianship amendment) can be inserted in section 4(d) of the designation form to allow a person in parental relationship to be designated in the event of a parent’s administrative separation:

  1. Any authority granted to the person in parental relationship pursuant to this form shall be valid (check appropriate box and initial):

___ d. commencing upon the date I become subject to an administrative separation such that care and supervision of the child(ren) will be interrupted or cannot be provided and continuing until administrative separation has ended or until the date of revocation, whichever occurs first.

Notarization in Other Countries

The standby guardianship designation does not need to be notarized but the parental designation must be notarized by a parent and by the designee for periods greater than thirty days. For parents who have left the country and need to notarize abroad, federal law states that notarizing officers at any United States Embassy or Consulate abroad can provide a service similar to the function of a notary public in the U.S. For information relating to notarial services with respect to specific countries, including office locations, consult the U.S. Department of State’s website.[16] While for periods greater than thirty days, the designee must also notarize, the designee notarization does not have to be concurrent with the parent’s (and designee notarizations could be performed in the United States).

The parent must personally appear at the embassy or consular office and bring the document with him. The office will establish their identity; establish that they understand the nature, language and consequences of the document to be notarized; and must be satisfied the act does not come within the purview of a regulatory basis for refusal. Then they will provide the notarization.

Most notarizing officers may also authenticate documents, which means that the consular seal is placed over the seal of a foreign authority whose seal and signature is on file with the American Embassy. The authentication merely attests to the seal and signature of the issuing foreign authority. Notary and authentication services may be performed for any person regardless of nationality so long as the document in connection with which the service is requested is required for use within the jurisdiction of the United States.

It is also possible to have a document notarized by a local foreign notary (instead of going to the embassy or consular office) and then have the document authenticated by the proper authority in the foreign country for use in the United States.[17] In accordance with 22 CFR, Part 131, the Office of Authentications provides signed certificates of authenticity for a variety of documents to individuals, institutions, and government agencies. Examples of documents that may require authentication for use abroad include: company bylaws, powers of attorney, trademarks, diplomas, treaties, warrants, extraditions, agreements, certificates of good standing, and courier letters.

The U.S. Department of State only issues apostilles for federal documents to use in countries that are members of the 1961 Hague Convention.[18] In countries that are a party, this is a simplified process. An Apostille certificate is attached by the foreign notary regulator, verifying that the notary certificate on the document is authenticated. This means the individual may have the document signed by a local notary, and then contact the country’s notary regulator office to have the Apostille certificate attached.

If a country is a party to the Hague Apostille Convention, the US automatically would accept the local foreign notary as long as an Apostille certificate is attached. Note that Haiti is not a party to the Hague Apostille Convention.

Conclusion

With so many parents facing deportation, immigration attorneys, as well as estate planners and other attorneys who are assisting families with future planning, now have new tools that can assist in keeping children who are citizen in the United States and in the care of persons chosen by their parents or caregivers. Unfortunate as it may be, parents who make the hard choice to leave children here, can do so without the risks of court appearances. It is hoped that circumstances will not always remain so dire but until then, New York’s statutory amendments provide improved strategies for care that should assist many families who are facing deportations of parents or caregivers.

For more information about non-parental care, visit www.nysnavigator.org.

Gerard Wallace, Esq.
Director, NYS Kinship Navigator
Public Service Professor
U. at Albany, School of Social Welfare
gwallace@albany.edu
www.gerardwallace.org
Cell: 845-594-6398

 

Endnotes

[1] Gerard Wallace, Esq., is the Director of the New York State Kinship Navigator and a Public Service Professor at the University at Albany, School of Social Welfare.

[2] While this memo often refers only to parents, it is important to note that the standby guardian statute also permits guardians, legal custodians, and certain “primary caretakers” to petition or designate a standby, and the parental designation, in addition to parents, also permits guardians to designate.

[3] See, Camila DeChalus, More US children could be separated from immigrant parents, Chicago Tribune (July 14, 2018), http://www.chicagotribune.com/sns-tns-bc-immigration-children-20180714-story.html#

[4] Jeffrey S. Passel & D’Vera Cohn, Unauthorized immigrant population stable for half a decade, Pew Research Center – Fact Tank (September 21, 2016). http://www.pewresearch.org/fact-tank/2016/09/21/unauthorized-immigrant-population-stable-for-half-a-decade/

[5] Illegal immigrant population of the United States, Wikipedia, The Free Encyclopedia, (last edited April 8, 2018), https://en.wikipedia.org/wiki/Illegal_immigrant_population_of_the_United_States, citing Pew Research Center. 2017-04-27.  Retrieved 2017-08-22.

[6] In Jennings v. Rodriguez, 138 S. Ct. 830, (Feb. 27, 2018), (Alito, J.) in a 5-3 decision, the US Supreme Court reversed and remanded a Ninth Circuit decision which concluded that detained aliens have the right to periodic bond hearings during the course of their detention. As a result, indefinite detention is allowed for applicants for admission and detainees.

[7] DACA Factsheet, Numbers USA, https://www.numbersusa.com/sites/default/files/public/assets/resources/files/DACA_factsheet.pdf

[8] Number of Form I-821D, Consideration of Deferred Action for Childhood Arrivals by Fiscal Year, Quarter, Intake, U.S. Citizenship and Immigration Services, https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/All%20Form%20Types/DACA/daca_performancedata_fy2018_qtr2_plus_may.pdf, Biometrics and Case Status Fiscal Year 2012-2017 (U.S. Department of Homeland Security, 2017).

[9] Michael D. Shear and Julie Hirschfeld Davis, Trump Moves to End DACA and Calls on Congress to Act, The New York Times, Sept. 5, 2017, https://www.nytimes.com/2017/09/05/us/politics/trump-daca-dreamers-immigration.html.

[10] Fact Sheet, U.S. Citizen Children Impacted by Immigration Enforcement, American Immigration Council (May 23, 2018), https://www.americanimmigrationcouncil.org/research/us-citizen-children-impacted-immigration-enforcement

[11] Robert Warren and Donald Kerwin, A Statistical and Demographic Profile of the US Temporary Protected Status Populations from El Salvador, Honduras, and Haiti, Center for Migration Studies, Journal on Migration and Human Security, Volume 5 Number 3 (2017): 577-592, http://cmsny.org/publications/jmhs-tps-elsalvador-honduras-haiti .

[12] Numerous statutes codify procedures and standards regarding various custodial arrangements. Listed here are just a few of the most relevant.

[13] Under the Trump administration’s executive orders, access to family court information can bear special risks because undocumented immigrants who were not previously targeted for immigration enforcement are now priorities whenever they engage in conduct that “constitutes a criminal offense” or is deemed by any individual immigration officer to “pose a risk to public safety.” This wide discretion and broadly worded language suggests that any arrest or other conduct deemed “a risk” may prompt Immigration and Customs Enforcement (“ICE”) to apprehend a noncitizen, regardless of whether the conduct results in criminal prosecution and conviction.

[14] Information from orders of protection are immigration-related triggers for several reasons. A family court finding that an individual has violated an order of protection, even a temporary one, is grounds for deportation. Even if an order is not violated, the existence of a temporary or permanent protective order can be grounds for denying an individual an immigration benefit or relief from removal. An order of protection may also prompt questions about the underlying conduct, and additional requests for family court records.

[15] New York State Senate, Bill S6217, 2017-2018 Legislative Session, Diane J. Savino, sponsor, https://www.nysenate.gov/legislation/bills/2017/s6217/amendment/a

[16] For instance, services provided in the Country of Haiti can be found at: https://ht.usembassy.gov/u-s-citizen-services/local-resources-of-u-s-citizens/notaries- public/.

[17] U.S. Department of State, Bureau of Consular Affairs, Office of Authentications, Travel.State.gov., https://travel.state.gov/content/travel/en/legal/travel-legal-considerations/internl-judicial-asst/authentications-and-apostilles/office-of-authentications.html

[18] See: https://travel.state.gov/content/travel/en/legal/travel-legal-considerations/internl-judicial-asst/authentications-and-apostilles/Notarial-Authentication-Services-Consular.html.  Countries that are parties to the Hague Apostille Convention can be found here: http://www.internationalapostille.com/hague-apostille-member-countries/.

Municipal IDs: Local Governments and the Power to Create Identity Documents

by Kendra Sena*

Introduction

While the federal government has exclusive authority to govern matters of immigration, state and local governments retain the right to enact laws that protect their residents, including undocumented immigrant residents.  One strategy that a number of local governments across the country have adopted is to issue photo ID cards to their residents—regardless of immigration status.

Local governments generally enjoy broad authority to enact laws aimed at protecting the well-being of their residents.  Cities and counties administer local programs, decide how to run their police forces, and make decisions about education and other services to their residents.  Localities across the country have routinely used their authority to create and issue various identification documents, including employee IDs, parking or local-access permits, and, most recently, resident identification cards known as “municipal IDs.”

Municipal IDs do not take the place of state-issued IDs; they are not, for example, a substitute for a driver’s license or sufficient identification to board a plane.  But in recent years, a number of cities and counties across the country have begun to issue municipal IDs to their residents in an effort to promote safety and integration of all members of the community, including some immigrants for whom state-issued IDs are out of reach.

Municipal IDs allow cardholders to access local services that may otherwise be foreclosed to them.  For example, municipal IDs may be used to cash a check, rent an apartment, or participate in local civic life.  Moreover, the IDs may be used as identity documents when interacting with local law enforcement, a function that has been credited with an increase in civilian reporting of crime and cooperation with law enforcement investigations.[1]

But as more and more localities move to adopt municipal IDs, local governments face difficult decisions:  how to protect themselves from potential challenges from the state or federal government, how to store identifying information of residents who apply for the IDs, how to protect that information from disclosure, and how to administer the program in a way that promotes safety and integration of resident cardholders.

This explainer will outline the various reasons a local government may choose to create a municipal ID and the mechanisms by which such a program may be adopted.  It will then discuss how municipal IDs interact with state and federal law, and some of the privacy and other concerns that have arisen in localities across the country with municipal IDs.

I.  Why do local governments issue municipal IDs?

A wide variety of public and private services require the user to present an ID.  Government-issued IDs are often required to open a bank account or even cash a check,[2] register a child for school, or rent an apartment from a private landlord.  In each of the preceding examples, nothing in the law requires a person to present a government-issued ID—in fact, in the case of registering a child for public school, requiring a photo ID from the parent is illegal, and a number of school districts across the country have been sued for implementing photo ID requirements.[3]  Regardless of the legal basis for such requests, the reality is that people are asked for a photo ID at numerous points of sale and service throughout their daily lives.

But many people face barriers to obtaining IDs from their state governments.  Often state IDs require original birth certificates, social security cards, and other documents that vulnerable populations may not have.  For example, people experiencing homelessness, youth in the foster system, the low-income elderly, people with mental illness and disabilities, formerly incarcerated people, and survivors of domestic violence may not have a stable place to store the documents that state governments require for IDs.  In many states, transgender people are blocked from changing their driver’s license to match their gender identity without a court order, amended birth certificate, or even proof of surgery.[4]

Ineligibility for state-issued ID cards can have harsh consequences for many immigrants, particularly the undocumented.  In New York, as in most states across the country, undocumented immigrants are prohibited from obtaining driver’s licenses and state-issued IDs.[5]  Because many immigrants work in the cash economy and are unable to open bank accounts without government-issued IDs, they become vulnerable to theft.[6]  Lack of IDs may make undocumented immigrants uncomfortable reporting theft and other crimes to local police, making law enforcement less able to address serious crime in their communities.[7]

Local governments may choose to fill this gap by developing a municipal ID program.  Because local governments are free to make their own rules concerning their municipal ID programs, most require applicants to produce less documentation than they would have to produce for a state-issued ID.  Whereas a state-issued ID might require proof of identity in the form of an original birth certificate, U.S. passport, or visa, a locality may choose to accept proof of identity in the form of a student or employee ID, foreign passport, or consular-issued document in order to apply for a municipal ID.  While these efforts aim to make it easier for residents—including undocumented immigrants—to obtain a municipal ID, the IDs are available to all residents, regardless of immigration status.

While municipal IDs may serve a symbolic function—creating a sense of membership in the community and commitment to the integration of all residents into civic life—they do not, on their own, create new rights for undocumented immigrants and other cardholders.  Instead, they facilitate access to municipal and other services for which cardholders are already eligible.[8]  Some IDs are linked directly to those services—the cards serve as library cards or bus passes, for example—while other IDs prove residency in order to access services, like entrance to city facilities or municipal buildings.[9]

Because municipal IDs provide increased access to banking and other financial services, municipal ID programs may stimulate local economies.  Studies show that immigrants are disproportionally “unbanked,” meaning they do not have checking or savings accounts and rely instead on “high-cost fringe providers” like check cashing stores and payday lenders.[10]  Access to a bank account allows consumers to earn interest on their savings and reduces the transaction costs of cashing a check or sending a money order, stimulating local spending and investment.[11]  And at least one city with a municipal ID program attributed a significant reduction in crime and an increase in crime reporting to the widespread use of the cards, particularly in the immigrant community.[12]

II. Which parts of local governments create municipal IDs?

Over two dozen cities and counties in the US have enacted municipal ID laws,[13] including two in New York: New York City began issuing its “IDNYC” in January 2015,[14] and in July 2018, the city of Poughkeepsie passed local legislation to create a municipal ID program.[15]

Most municipal ID programs are adopted by an action of the local legislative body and administered by a local agency.[16]  Though it is likely that mayors and county executives have the power to enact a municipal ID program through an executive order, such an enactment will be vulnerable to a rollback by a succeeding executive.[17]  An act of the local legislature can also codify certain important aspects of the program over which an administering agency may not have authority, such as the requirement that city officials accept the cards for all purposes.[18]

There are a handful of municipal ID programs that operate differently.  For example, the Mercer County, NJ, municipal ID is administered by a local nonprofit, and the Oakland, CA, municipal ID is administered by a private corporation.[19]  A community-based organization in Kingston, NY, issues a community ID without local authority.[20]

III. How do municipal IDs interact with state and federal law?

State laws.   Within any state, state and local governments share responsibility for governing the lives of their residents.  Typically, municipalities have the broadest authority in matters of local interest.  In many states, including New York, this power derives from the principle of “home rule,” an explicit grant of authority from the state to the municipalities to govern themselves.[21] Home rule gives local governments the freedom to experiment with local policy, especially regarding “municipal issues.”  In New York, home rule is enshrined in the state constitution and further enumerated by statute.[22]

Even in home-rule states, however, states may limit local power.  Where an issue involves a matter of “substantial state interest,” the state can preempt the local government’s ability to adopt local laws.[23] In New York, there is no state law that preempts municipal IDs.  In fact, enacting identity documents is one of the many enumerated rights in a state statute governing cities.[24]

Federal laws.  There is no federal law prohibiting a municipality from issuing its own identification cards.  However, a locality that is considering a municipal ID program should be aware of a number of limitations based on federal law.

Preemption.  The federal government has exclusive authority over national immigration law and policy, and no state or locality may enact any law that attempts to regulate immigration. The federal government is said to “occupy the field” of immigration and, as such, attempts by state or local governments to regulate immigration are “field preempted” by federal law.[25]

Despite this broad field preemption, the only court to consider the issue made quick work of a challenge to a municipal ID program on federal preemption grounds.  In 2008, the Immigration Reform Law Institute, a group that advocates for stricter immigration laws, sued the City of San Francisco claiming that its municipal ID program violated federal immigration laws.[26]  The group argued that because the city issued cards to undocumented people, the program encouraged illegal immigration.  The judge upheld the city’s argument that the claim was “purely speculative,” and that because the cards were available to all residents, “immigration status is not considered at all under the Ordinance,” and thus not preempted by federal immigration law. [27]  The case is instructive; it demonstrates that even those programs that allow undocumented immigrants to receive municipal IDs are not preempted by federal immigration law as long as they are made available to all residents, regardless of immigration status.

USA PATRIOT ACT.  The USA PATRIOT Act is a comprehensive law enacted in the wake of 9/11 aimed at strengthening the security of the United States.  Among a great many other provisions, the PATRIOT Act requires financial institutions such as banks and credit unions to verify the identities of those seeking to access financial services.[28]  The law permits each financial institution to determine which documents it will accept for those purposes.  While many banks have implemented a requirement that a customer present a state-issued ID in order to access financial services, there is no federal regulation mandating such a strict requirement.[29]  Thus, financial institutions are free to accept municipal IDs as valid identity documents, and they do not run afoul of federal law when they do so.[30]  In fact, the National Federation of Credit Unions has encouraged its members to accept municipal IDs where available.[31]  Thirteen banks and credit unions in New York accept New York City’s IDNYC.[32]

PRWORA. The federal Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996 provides limits on the extension of federal, state, and local benefits to unlawfully present noncitizens.[33]  The statute defines the benefits that it restricts, including certain retirement, welfare, and postsecondary education assistance.[34]  A municipality cannot override this federal law; conflicting state or local laws are said to be “conflict preempted.”[35]  This means that a person issued a municipal ID would still be limited by the PRWORA and other applicable laws; the card cannot extend benefits to otherwise ineligible people.[36]  But because the card itself is not considered a benefit, municipal IDs do not conflict with the law.[37]

REAL ID.  Although federal law allows localities to issue municipal IDs, those IDs are not compliant with the federal REAL ID Act.  This means that while municipal IDs are valid for whatever local use the municipality deems appropriate, the IDs will not be accepted as valid identity documents for federal purposes.

The REAL ID Act sets out certain requirements for identity documents to be accepted for federal purposes, including barring undocumented immigrants from obtaining REAL ID-compliant identification.[38]  But federal law does not prohibit states or localities from issuing IDs that do not comply with REAL ID.  To the contrary, the Act includes a description of the requirements for noncompliant IDs too, anticipating that other state-issued IDs will coexist with REAL ID-compliant identity documents.[39]

Many states, including New York, are rolling out new state-issued licenses that comply with REAL ID but also continuing to issue non-compliant licenses.[40]  Non-REAL ID-compliant state-issued licenses may be used for whatever purpose the state determines (such as driving or registering to vote), but, as with municipal IDs, will not be accepted for federal purposes (such as entry into a federal building, military base, or for domestic or international travel).

The limitations of non-REAL ID-compliant IDs may have serious consequences for undocumented cardholders.  In two separate incidences in 2018, three New York City residents were detained by federal immigration authorities after showing their IDNYC cards to enter military bases in New York.[41] It is therefore imperative that a local government that adopts a municipal ID program makes it clear that the IDs are not to be used for federal identification purposes.

IV. Privacy Concerns

Municipal IDs are made available to all residents of a municipality, not just undocumented immigrants.  However, because undocumented immigrants have a pronounced need for such government-issued IDs, there is some concern that municipal IDs may serve to stigmatize the cardholder or create a registry of undocumented immigrants.[42]  Municipalities that share these concerns have implemented a number of measures to encourage all residents to apply for and carry the card.  For example, an IDNYC card entitles the bearer to free membership to the Metropolitan Museum of Art, the Bronx Zoo, the Museum of Natural History, and other cultural attractions.[43]  In New Haven, CT, the city recruited local businesses to offer discounts to municipal ID holders, encouraging wide participation and stimulating local spending.[44]  Some states have also codified a prohibition on discrimination against people who present non-REAL ID-compliant IDs.[45]

Additionally, almost all municipal ID card programs across the country prohibit the copying or retention of personal documents used to apply for the cards, which for some people includes foreign birth certificates or passports.  Applicants for these IDs need only show their documentation to obtain an ID, rather than provide copies of it for the municipality to keep.

One very prominent exception was New York City, which until recently retained copies of applicants’ personal documents in a city database.  In 2016, two New York State Assembly members filed a Freedom of Information Law (FOIL) request with the city for any scanned information regarding IDNYC.  The city declined the request, stating that the information was subject to various FOIL exemptions, including protections against the disclosure of personal information, information reported in confidence, information that would intrude upon personal privacy, and information that would endanger the subject. The City then amended its protocol so that it would no longer maintain copies of such documents, and announced that it would destroy the personal documents it had collected up to that point.[46]  The Assembly members sued the city to block its plan to destroy the documents, arguing that destroying the records would threaten national security and that the data should be preserved and made accessible under the state’s FOIL law.[47]  The judge in the case held that the Assembly members lacked standing as they had demonstrated no injury; a general grievance on behalf of society was insufficient. [48]  He further held that FOIL allows disclosure of information and a promise of access, but does not mandate retention of these documents.[49]  The court permitted the city to destroy the documents as planned.  But the suit highlighted the risk that municipalities attempting to help noncitizens by issuing them municipal IDs may in fact increase their exposure if personal information is not handled in a way consistent with the program’s goals.

Although municipalities generally do not retain ID-holders’ personal documents, they do typically keep track of cardholders in electronic databases.  No federal law requires municipalities to collect or retain specific information or to grant federal access to municipal databases.  And it does not seem that federal authorities have access to municipal databases through their standard automated networks used for law enforcement purposes.[50] Many municipalities have codified protections against disclosure of identifying information, and clarified which information will be treated as confidential under the federal and state freedom-of-information laws.

For example, the New York City law that created that city’s ID program included language that requires a subpoena or judicial warrant for law enforcement to access the data.[51]  Additionally, the city issued a number of executive orders to heighten the security measures for handling confidential information, including the new provision for refraining from retaining the personal documents of applicants.[52]

In Connecticut, the state’s Freedom of Information Commission denied a request by private citizens to release the names, addresses, and phone numbers of municipal ID card holders, claiming that the program violated federal law by aiding illegal immigration.  The Commission found that the New Haven ID card program does not constitute a local attempt at immigration regulation because card applicants were not asked about their immigration or citizenship status at all.  Citing credible threats of violence against city officials and undocumented immigrants who carry the card, the Commission ruled that New Haven officials could keep secret the identity of cardholders under the public-safety-risk exemption in the freedom of information law.[53]  At present these cases are rare, but they highlight the risks involved if municipalities develop ID programs without a careful eye toward confidentiality.

Conclusion

Federal law serves as a constraint on local governments’ ability to make immigration policy, but also provides some freedom to make decisions that directly affect the daily lives of immigrants within their communities.  Municipal IDs are meant to bring all residents into the civic fold—facilitating access to municipal and other services, stimulating local economies, and creating trust between residents and law enforcement.  While it is clear that municipal governments have an inherent right to create such programs, there are still questions about the degree to which local governments can protect the private information of their residents who apply for the cards.  Local governments must confront difficult questions regarding document storage and privacy, and strike a balance between the vulnerabilities the cards are meant to correct, and the ones they may inadvertently create.

RESOURCES

The Equal Protection Clause generally requires that state and local governments treat citizens and noncitizens equally.  This means that if a locality issues a municipal ID for its citizen residents, it must also make the ID available to its noncitizen residents.  For more on the requirements of Equal Protection, see the Government Law Center’s publication, “Immigrants and Public Benefits: What Must States and Localities Provide? (And When Do They Have a Choice?)” available at: www.albanylaw.edu/GLC/Immigration

For a useful guide to implementing a municipal ID program, including costs, timeline, and model legislation, see:

The Department of Homeland Security has posted answers to a number of frequently asked questions about the REAL ID Act, available at: https://www.dhs.gov/real-id-public-faqs

 

Endnotes

* Kendra Sena is the Senior Staff Attorney at the Government Law Center at Albany Law School.  Research assistance by Olivia Fleming, Brendan Nashelsky, and Michele Monforte.

[1] See Thomas MacMillan, “Elm City ID Card Turns 5,” New Haven Independent (Jul. 23, 2012), https://www.newhavenindependent.org/index.php/archives/entry/id_card_anniversary/.

[2] Federal law requires financial institutions to verify the identities of those seeking to access financial services.  31 C.F.R. § 1020.220.  Each institution sets its own rules for which forms of identification it will accept, and most require a government-issued ID.  See, Anna Paulson et al., “Financial Access for Immigrants: Lessons from Diverse Perspectives” (The Federal Reserve Bank of Chicago & The Brookings Institution, May 2006), https://www.brookings.edu/wp-content/uploads/2016/06/20060504_financialaccess.pdf.

[3] The U.S. Department of Justice has explained that requiring a parent to present a photo ID to enroll a child in school is unconstitutional.  U.S. Dep’t of Justice, Civil Rights Division, “Information on the Rights of All Children to Enroll in School: Questions and Answers for States, School Districts and Parents,” (May 18, 2014), https://www.justice.gov/sites/default/files/crt/legacy/2014/05/08/plylerqa.pdf (stating that “while a district may choose to include a parent’s state-issued identification or driver’s license among the documents that can be used to establish residency, a school district may not require such documentation to establish residency or for other purposes where such a requirement would unlawfully bar a student whose parents are undocumented from enrolling in school”) (emphasis in original).  Still, districts across the country routinely list parent photo ID as required documentation to enroll a child in school.  For a recent example of the many lawsuits against such school districts, see Hannan Adley, “ACLU-NJ Sues 12 School Districts, Alleging Discrimination Against Undocumented Students,” North Jersey (Jul. 26, 2018), https://www.northjersey.com/story/news/2018/07/26/aclu-nj-sues-12-school-districts-alleged-discrimination-against-immigrants/842738002/.

[4] For a state-by-state guide to the rules governing name and gender changes on federal and state IDs, see the National Center for Transgender Equality’s ID Documents Center at: https://transequality.org/documents.

[5] The National Conference of State Legislatures maintains a list of state laws that permit undocumented immigrants to access driver’s licenses.  See, http://www.ncsl.org/research/immigration/states-offering-driver-s-licenses-to-immigrants.aspx.  The New York state legislature declined to vote on such a bill in 2018.  New York State Legislature, Assembly Bill 8680 (S8680) An act to amend the vehicle and traffic law, in relation to authorizing the department of motor vehicles to issue standard drivers’ licenses, 2018 Reg. Sess. (May 10, 2018).

[6] Laura Sullivan, “Police, Banks Help Undocumented Workers Shake ‘Walking ATM’ Label,” Morning Edition, NPR, (Jan. 20, 2014) (describing the high incidence of robbery victimization among immigrants who are more likely to work in the cash economy and less likely to use banks).

[7] Caitlin Gokey & Susan Shah, How to Serve Diverse Communities, in Police Perspectives: Building Trust in a Diverse Nation (U.S. Dep’t of Justice, Office of Cmty. Oriented Policing Servs. & Vera Institute 2016), https://www.vera.org/publications/police-perspectives-guidebook-series-building-trust-in-a-diverse-nation.

[8] Els de Graauw, Municipal ID Cards for Undocumented Immigrants: Local Bureaucratic Membership in a Federal System, 42(3) Politics & Society 309, 314 (2014).

[9] Stella Burch Elias, Immigrant Covering, 58 Wm. & Mary L. Rev. 765, 841 (2017).

[10] National Federation of Community Development Credit Unions, A Toolkit for Credit Unions Serving Immigrants: Best Practices for Providing Access, Lending and Integration Through Partnerships to Underserved Communities, (Dec. 2015), http://www.cdcu.coop/wp-content/uploads/2016/09/A-Toolkit-for-Credit-Unions-Serving-Immigrants.pdf.

[11] For a robust discussion of the effects of banking the unbanked around the world, see, e.g., Asli Demirguc-Kunt et. al., The Global Findex Database 2017: Measuring Financial Inclusion and the Fintech Revolution (World Bank Group 2018), http://documents.worldbank.org/curated/en/332881525873182837/The-Global-Findex-Database-2017-Measuring-Financial-Inclusion-and-the-Fintech-Revolution.

[12] Five years after the implementation of the city’s municipal ID program, the Police Chief of New Haven, CT, the first city to adopt a municipal ID, reported an increase in the crimes reported and a 20% decrease in crime committed over the first two years after implementing the program.  MacMillan, supra note 1.

[13] They include: New Haven, CT, Chicago, IL, Oakland, CA, San Francisco, CA, Johnson County, IA, Mercer County, NJ, among others.

[14] Matt Flegenheimer, “New York City to Formally Start Its Municipal ID Card Program,” N. Y. Times (Jan. 11, 2015), https://www.nytimes.com/2015/01/12/nyregion/new-york-city-to-formally-start-its-municipal-id-card-program.html.

[15] Kathy Welsh, “Poughkeepsie Becomes Second City in NYS with a Municipal ID,” Hudson Valley News Network (Jul. 11, 2018), https://hudsonvalleynewsnetwork.com/2018/07/11/poughkeepsie-becomes-second-city-in-nys-with-a-municipal-id/.

[16] The Center for Popular Democracy, Building Identity (Nov. 2015), https://populardemocracy.org/sites/default/files/Municipal-ID-Report_WEB_Nov2015_0.pdf.

[17] Id.

[18] Id.

[19] Id.

[20] The Worker Justice Center of New York issues a photo ID card to residents and workers in Kingston, NY.  The card was a response to a failed municipal ID initiative. See, http://www.wjcny.org/program/community-engagement.

[21] See Rick Su, Have Cities Abandoned Home Rule? 44 Fordham Urb. L. J. 181 (2017), https://ir.lawnet.fordham.edu/ulj/vol44/iss1/6.

[22] See, N.Y. Const. art. IX, §  2 and N.Y. Municipal Home Rule Law § 10 (McKinney 2011).

[23] For a discussion of recent trends in state preemption, see, National League of Cities, City Rights in an Era of Preemption: A State-by-State Analysis: 2018 Update (Feb. 2018), https://www.nlc.org/resource/city-rights-in-an-era-of-preemption-a-state-by-state-analysis.

[24] N.Y. Gen. City § 20 ¶14, Grant of Specific Powers (McKinney 2011) (stating that every city is empowered to “create, maintain and administer a system or systems for the enumeration, identification and registration, or either, of the inhabitants of the city and visitors thereto, or such classes thereof as may be deemed advisable).

[25] Arizona v. United States, 567 U.S. 387, 401 (2012) (noting that the federal government has occupied the field of alien registration, and that even complementary state regulation is impermissible).

[26] Langfeld et al. v. City and County of San Francisco et al., Super. Ct. S.F. City and County (No. CPF-08-508341) (2008),.

[27] Mem. of P. & A. in Supp. of Resp’t Dem. to Pet. for Peremptory Writ of Mandamus and Compl. for Decl. and Inj. Relief, Langfield et. al., supra note 26, No. 08-508341, (August 29, 2007).

[28] Customer identification programs for banks, savings associations, credit unions, and certain non-Federally regulated banks, 31 C.F.R. § 1020.220.,

[29] Department of the Treasury, Fact Sheet: Results of the Notice of Inquiry on Final Regulations Implementing Customer Identity Verification Requirements under Section 326 of the USA PATRIOT Act (2003), http:// www.treasury.gov/press-center/press-releases/Documents/js7432.doc.

[30] Center for American Progress, Providing Identification to Unauthorized Immigrants: The State and Local Landscape of Identification for Unauthorized Immigrants (Nov. 2016), https://cdn.americanprogress.org/wp-content/uploads/2015/11/23122616/ProvidingIDs1.pdf.

[31] National Federation of Community Development Credit Unions, supra note 10.

[32] https://www1.nyc.gov/site/idnyc/benefits/banks-and-credit-unions.page.

[33] Personal Responsibility and Work Opportunity Reconciliation Act, Pub. L. No. 104-193 Stat. 110 Stat. 2105 (August 22, 1996).

[34] Id.  See also, 8 U.S.C § 1621 (enumerating the benefits for which unauthorized immigrants are not eligible).

[35] See, e.g., Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 373 (2000).

[36] Kate M. Manuel & Michal John Garcia, Unlawfully Present Aliens, Driver’s Licenses, and Other State-Issued ID: Select Legal Issues, (Cong. Research Serv. 20-21 2014), http://www.fas.org/sgp/crs/misc/R43452.pdf.

[37] Building Identity, supra note 17.

[38]  REAL ID Act of 2005 Pub. L. No. 109-13 Stat. 119 Stat. 302 (May 11, 2008).

[39] Id. at § 202(d)(11) (requiring that state-issued IDs that do not comply with REAL ID bear certain markings).

[40] For a list of the several IDs that New York issues, including REAL ID-compliant and non-REAL ID-compliant, see: N.Y. Dept. of Motor Vehicles, Federal REAL ID: What REAL ID Means to You, https://dmv.ny.gov/driver-license/federal-real-id.

[41] Zoe Greenberg, “The IDs Were Meant to Protect Immigrants. Are They a Liability?,” N. Y. Times (Jul. 10, 2018), https://www.nytimes.com/2018/07/10/nyregion/idnyc-fort-drum-silva-barrios.html.

[42] Center for Popular Democracy, Who We Are: Municipal ID cards as a local strategy to promote belonging and shared community identity (Dec. 2013), http://populardemocracy.org/sites/default/files/municipal%20id%20report.pdf.

[43] Cities for Action, Municipal Program ID Program Toolkit (2015), http://www.citiesforaction.us/municipal_id_program_toolkit.

[44] Iván Espinoza-Madrigal, “Municipal ID Cards: Social Inclusion and Economic Benefits,” Huffington Post (Feb. 24, 2014), https://www.huffingtonpost.com/ivan-espinozamadrigal/municipal-id-cards-social_b_4848818.html.

[45] Center for American Progress, supra note 30.

[46] City of New York, Human Resources Administration, “Retention of Copies of Records Provided By New York City Identity Card (IDNYC) Program Applicants to Prove Identity and Residency,” HRA Executive Order No. E-739, (December 7, 2016), https://www1.nyc.gov/site/idnyc/about/legal-library.page.

[47] Liz Robbins, “New York City Should Keep ID Data for Now, Judge Rules,” N. Y. Times (Dec. 21, 2016), https://www.nytimes.com/2016/12/21/nyregion/new-york-city-should-keep-id-data-for-now-judge-rules.html.

[48] Castorina v. De Blasio, 55 N.Y.S.3d 599, 615 (N.Y. Sup. Ct. 2017).

[49] Id.

[50] Federal immigration authorities can use an automated, state-owned network called Nlets to obtain certain information from state driver’s license registries, but municipal databases are not part of that network.  For a robust discussion of Nlets and other information-sharing mechanisms used by federal immigration authorities, see National Immigration Law Center, Untangling the Immigration Enforcement Web (Sept. 2017), https://www.nilc.org/issues/immigration-enforcement/untangling-immigration-enforcement-web/.

[51] Rules of The City Of N.Y., ch. 6, § 6-11(d) (2017).

[52] See, City of New York, Human Resources Administration, “Retention of Copies of Records Provided By New York City Identity Card (IDNYC) Program Applicants to Prove Identity and Residency,” supra note 46; City of New York, Human Resources Administration, “Handling Of Third Party Requests for New York City Identity Card (IDNYC) Applicant and Cardholder Information,” (Dec. 1, 2014); City of New York, Human Resources Administration, “New York City Identity Card (IDNYC) Program Database Security,” (Dec. 1, 2014), https://www1.nyc.gov/site/idnyc/about/legal-library.page.

[53] Patrick Lee, “State agency to come to aid of city ID program,” Yale Daily News (Mar. 6, 2008), https://yaledailynews.com/blog/2008/03/06/state-agency-to-come-to-aid-of-city-id-program/.