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).

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].

Battle at the Border: National Northern Border Counternarcotics Drug Strategy

By Caroline Murray, Albany Government Law Review

I. Introduction

“It’s our dirty little secret,” said Franklin County District Attorney Derek P. Champagne.[1]  He was speaking of the U.S.- Canadian border drug trafficking issue.[2]  At the time of his statement, Mr. Champagne was prosecuting the drug bust of smuggler, Lee Marlowe, who was apprehended after an alert went out, “for a vehicle from the border with a load of marijuana.”[3] Congressman Bill Owens claimed this bust was the result of winning House approval of the Northern Border Counternarcotics Strategy Act one-month prior.[4]  Senator Charles Schumer, pushed the bill through the Senate and President Obama signed it into law on January 4, 2011.[5] Continue reading “Battle at the Border: National Northern Border Counternarcotics Drug Strategy”

Who Is Actually Prejudiced Under Padilla?

By Jason Reigert, Albany Government Law Review Class of 2011

Anyone who watches Law and Order can tell you that in a criminal matter every American is entitled to the right to be represented by an attorney.  This right is better known as the “right to effective assistance of counsel” and it is guaranteed by both the federal and New York State constitutions.[i]  The right to effective counsel has been expanded over the years, and the case of Padilla v. Kentucky is a good example of such expansion.  In Padilla v. Kentucky, the Supreme Court expanded the notion of effective assistance of counsel to include an obligation by defense attorneys to inform their clients of possible deportation consequences.  As a result of this decision, a wave of defendants have recently sought to vacate their guilty pleas under a theory of ineffective assistance of counsel, due to being improperly informed of the potential deportation consequences.  While Padilla has caused an increase in ineffective assistance of counsel claims, Padilla has not had as much of an impact as some might expect.  Continue reading “Who Is Actually Prejudiced Under Padilla?”