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.


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
Cell: 845-594-6398



[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*


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.


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.


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



* 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/.

Immigrants and Public Benefits:  What Must States And Localities Provide?  (And When Do They Have a Choice?)

by Andy Ayers*

Immigration law is often thought of as a federal issue, and indeed the federal government has exclusive power over who enters the country and on what terms they can remain.  But the day-to-day life of noncitizens is regulated both by the federal government and by its state and local counterparts.

One of the many controversies related to immigration is over immigrants’ access to public benefits.  In 1996, the Welfare Reform Act dramatically limited lawful immigrants’ access to public benefits, causing almost a million noncitizens to lose access to benefits.[1]  But the controversy has continued from that time to today.  Recent proposals by the Trump administration would significantly increase the number of noncitizens (and their children) who become deportable because they use public benefits.[2]

Meanwhile, few people understand exactly what benefits noncitizens can receive.  This Explainer gives an overview of the laws governing state and local governments’ provision of public benefits to noncitizens.  By “public benefits,” we mean not only traditional public benefits like welfare and housing assistance, but all of the affirmative goods that governments offer to the citizens, from professional licenses to Medicaid to education assistance to government contracts and grants.

The Constitution requires states and localities to treat noncitizens just like citizens (with a few exceptions, discussed below).  But federal statutes sometimes require states to treat the two groups differently.  So state and local governments have to navigate a tricky path between the rock of Equal Protection and the hard place of federal preemption.

This Explainer first discusses the requirements of Equal Protection, and then explains how federal statutes sometimes limit the benefits states and localities can give to noncitizens.

I.  When Equal Protection Requires Benefits

In general, the federal government is allowed to treat citizens and noncitizens differently.[3]  But when the law or policy in question comes from the government of a state or locality, noncitizens have a constitutional right to be treated like citizens.[4]

Under a long line of Supreme Court cases, states and localities that distinguish between citizens and noncitizens are subject to “strict scrutiny,” meaning that in order to comply with the Constitution, the law or policy that treats noncitizens differently must “further[] a compelling state interest by the least restrictive means practically available.”[5]  This is the same level of scrutiny that applies to racially discriminatory laws.

Hardly any state law or policy can survive strict scrutiny; in practice, strict scrutiny means the law is virtually certain to be struck down.

So the Constitution treats state discrimination against noncitizens with the same suspicion reserved for racial discrimination.  But in the case of noncitizens, there are some important exceptions—cases in which states are allowed to treat noncitizens differently.

Differential treatment of noncitizens in public employment.  One important exception to the rule that states and localities cannot treat noncitizens differently is known as the “political function” doctrine.  Under this doctrine, state governments are free to limit certain kinds of public employment to citizens, including jobs like public-school teachers and police offers.[6]  The Supreme Court has not applied this exception to local governments, but it seems likely it would extend to them.

Differential treatment of the unlawfully present.  A second exception is for noncitizens who are unlawfully present. While the Supreme Court has never explicitly held that state and localities can deny benefits and services to undocumented people, courts have interpreted this to be an implication of the Court’s decision in Plyler v. Doe.[7]  (This Explainer uses the word “undocumented” and the phrase “unlawfully present” interchangeably.)

Importantly, there are difficult questions about exactly who counts as unlawfully present for these purposes.  Clearly within the category are people who cross the border without permission.  Then there are people who enter the country lawfully but overstay their visas. (Each year, roughly two-thirds of newly unlawfully present noncitizens have overstayed their visas.)[8]

There are other noncitizens who, although lawfully present, commit a crime that makes them deportable, and it is far from clear how this group would be regarded under the Equal Protection Clause.  Still other noncitizens are temporarily without lawful status, but have a right to remain in the country and are simply waiting for their paperwork to be processed. (For example, someone whose fiancé is a U.S. citizen might be between statuses while they wait for their green card to be issued.) It is not clear which of these groups might be denied state or local benefits without triggering strict scrutiny.

Differential treatment of noncitizens in temporary status.  A third possible exception to the rule against treating noncitizens differently should be approached with great caution.  According to some courts, “rational basis” scrutiny—a very forgiving standard of review—applies to state laws that distinguish between citizens and those noncitizens in temporary status.[9]  In other words, states may deny benefits and services to people in temporary status (e.g., people with student visas, temporary work visas, and similar statuses), even though they must not discriminate against noncitizens with permanent status (i.e., green-card holders).

This exception for temporarily present noncitizens has been adopted by two federal appellate courts. But it has been rejected by the Second Circuit, which covers New York, Vermont and Connecticut.[10]  This creates a “circuit split” that will likely be resolved by the U.S. Supreme Court at some point in the future.

The exception for temporarily present noncitizens has also been rejected in the strongest terms by the New York Court of Appeals in Aliessa v. Novello, 96 N.Y.2d 418 (2001).  The Court applied strict scrutiny to state laws that apply differential treatment to lawfully present noncitizens—not just those with green cards, but also temporarily present noncitizens, and even “aliens of whom the INS is aware, but has no plans to deport.”[11]

This latter category—noncitizens who are deportable, but whose deportations are being stayed as a matter of federal prosecutorial discretion—is the most temporary and tenuous of all immigration statuses.  If New York law applies strict scrutiny to these noncitizens, then the only group that can be treated differently from citizens in New York is noncitizens who have no explicit or implicit authorization to remain in the country.

The holding of Aliessa was based not only on the U.S. Constitution but also on the New York State Constitution.[12]  This means that even if the Supreme Court were to allow state discrimination against temporarily present noncitizens temporary visitors, the New York ruling would stand.

Aliessa also held that differential treatment of noncitizens is unconstitutional under a separate provision of the state constitution:  article XVII, § 1, which provides:

“The aid, care and support of the needy are public concerns and shall be provided by the state and by such of its subdivisions, and in such manner and by such means, as the legislature may from time to time determine.”

The court held that this provision forbids the state from imposing an “eligibility condition having nothing to do with need.”[13] Interestingly, no subsequent case has analyzed whether the same constitutional prohibition would forbid denying essential benefits to undocumented people.  But it is reasonable to expect a judicial challenge to any state or local policies that deny benefits to undocumented people, because a requirement that denies benefits on grounds of undocumented status would be an “eligibility condition having nothing to do with need.”

In sum, the basic rule governing noncitizens’ benefits is that state and local governments in New York cannot treat noncitizens differently from citizens unless the noncitizens are unlawfully present, or unless the political-function exception applies.

There is, in effect, one final exception to the requirement of equal treatment for noncitizens—an exception so complex it will be analyzed in the three separate sections that form the rest of this Explainer.  Congress can, and does, create laws that require states to treat noncitizens differently, or that purport to give states discretion to treat them differently.  And, on occasion, Congress requires equal treatment.  All of these provisions give rise to constitutional questions that have yet to be definitively resolved.

II.  When Congress Prohibits Benefits

Although the Equal Protection Clause generally requires that state and local governments treat noncitizens equally, several federal statutes demand differential treatment of noncitizens.

Section 1621:  Noncitizens in Certain Marginal Statuses Are Generally Ineligible for Subfederal Benefits.  The most important statute restricting state and local rights to offer benefits and services to noncitizens is 8 U.S.C. § 1621.  This statute limits state and local governments’ right to provide a wide variety of government benefits, contracts, and licenses, including:

any grant, contract, loan, professional license, or commercial license provided by an agency of a State or local government or by appropriated funds.[14]

The statute also applies to “any retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemployment benefit, or any other similar benefit.”[15]

Noncitizens cannot receive any of these benefits or licenses unless their immigration status is specifically listed in § 1621(a).[16]  (There are exceptions for some emergency health-care benefits.[17])

Who is barred from benefits by § 1621?  Undocumented people are not among the groups listed as eligible, so they are ineligible for all of the enumerated benefits.  Section 1621 also denies benefits to people who are not unlawfully present, including people in the following classifications:

  • Temporary Protected Status.[18]
  • Deferred Action for Childhood Arrivals (DACA).[19]
  • Forms of “deferred action” other than DACA. (Although DACA is the highest-profile form of deferred action, deferred action has been granted since the 1970s, when it was referred to as “nonpriority” status.)[20]
  • Deferred Enforced Departure.[21]
  • Citizens of nations party to the Compact of Free Association Agreements (Palau, Micronesia, and the Marshall Islands).[22]

The upshot of § 1621 is that states can offer to noncitizens with green cards, student visas, or other listed statuses all of the benefits listed in § 1621, including things like welfare, Medicaid, professional licenses, government contracts, or unemployment benefits.  But states cannot offer these benefits to noncitizens in Temporary Protected Status, DACA beneficiaries, or undocumented people.

However, there is an important exception under which states can choose to provide benefits to any of the ineligible groups. Under § 1621(d), states can override the ineligibility, and provide benefits, “through the enactment of a State law after August 22, 1996, which affirmatively provides for such eligibility.”

Several states have exercised this prerogative.  For example, California and Florida passed statutes to make DACA recipients eligible for admission to the bar.[23]

Section 1621 seems to allow states to override the ineligibility only if the state legislature acts.  But courts in New York State have held that the judicial branch, too, can exercise that authority.  The theory these courts adopted is that states have a sovereign right to decide which branch of their government makes any given decision.  Thus, although § 1621(d) seems to require a decision by the state legislature, states are free to delegate that decision to another part of their government.[24]

Other cases in New York and elsewhere have followed the precedent set by Vargas.[25] And the New York State Education Department, acting on the same theory, issued regulations admitting noncitizens to professional licensure, invoking the authority embraced by Vargas.[26]

Another important feature of § 1621 is that it does not require state or localities to verify immigration status before offering any of the listed benefits.  Another section, 8 U.S.C. § 1624, authorizes states to confirm eligibility, but does not require it.[27] Thus, while states and localities are in theory barred from offering listed benefits to undocumented people, they are free to ask no questions about immigration status when people apply.

Higher-Education Benefits.  There is one more situation in which states are forbidden to offer benefits to non-citizens:  States cannot offer higher-education benefits to undocumented people unless those benefits are also available to citizens.[28]

Currently, the District of Columbia and twenty states (including New York) allow undocumented students to pay in-state tuition.[29]  Three states (Alabama, Georgia, and South Carolina) bar undocumented students from enrolling in some or all higher-educational institutions.[30]  Many state legislatures have pending bills that would expand or limit in-state tuition for undocumented students.[31]

III. When Congress Gives States a Choice

As we’ve seen, Congress sometimes tries to prohibit states from offering benefits to noncitizens.  There are other statutes in which Congress purports to give states a choice.

Section 1622:  For Most Noncitizens, Congress Purports to Give States Discretion Over Which Benefits to Offer.

What about the noncitizens who are eligible for state and local benefits under § 1621?  This group includes “nonimmigrants” (temporary visa-holders, like people with student visas, work visas, tourist visas, or other short-term visas); certain “parolees” (a very tenuous status that has nothing to do with criminal parole); and “qualified aliens” (a group that includes green-card holders, asylees and refugees, and others).[32]  In short, it includes many of the most common immigration statuses.

Noncitizens in this large group are covered by 8 U.S.C. § 1622, which says that states are “authorized to determine the eligibility for any State public benefits” of anyone with these benefits.[33]

Some courts have interpreted this to mean that the federal government has given states the freedom to decide whether to grant benefits to people in this group.[34]

But other courts, including the New York Court of Appeals, have found that whenever states have a choice, the Equal Protection Clause applies—and requires equal treatment of noncitizens.[35]  Congress may want states to have discretion, but, in the words of the Supreme Court, “Congress does not have the power to authorize the individual States to violate the Equal Protection Clause.”[36]

Cash Assistance.  Congress attempted the same strategy for general cash public assistance.  8 U.S.C. § 1624 provides that states and localities are “authorized to prohibit or otherwise limit or restrict the eligibility of aliens or classes of aliens for programs of general cash public assistance,” as long as the state scheme is not more restrictive than the parallel federal benefits scheme. The same questions arise:  does Congress have the power to authorize behavior by states that would otherwise violate immigrants’ right to equal protection?

IV.  When Congress Requires Benefits

Section 1622(b) requires benefits for Permanent Residents, Refugees, and Asylees After a Certain Amount of Time.  As discussed above, Congress generally wanted states to have the discretion to choose whether to offer benefits to most lawfully present noncitizens.  But, as always, there’s an important exception.

Under § 1622(b), states are required to offer public benefits to legal permanent residents (“LPRs,” i.e., green-card holders), asylees, and refugees after specified periods of time.  For refugees, it’s five years after entry into the U.S.; for asylees, 5 years after the grant of asylum; and for green-card holders, it’s 40 quarters of work.[37]

State are also required to offer benefits to noncitizens in active military service, veterans, and their children.[38]

Does Congress Have the Power to Require Benefits?

Congress’s attempts to require that states offer certain benefits, create a complicated constitutional issue.  First, does Congress have the constitutional power to impose such a requirement?  And, second, if Congress has no power to impose such a requirement, does equal protection require states to offer benefits anyway?

In general, Congress cannot “commandeer” the states—that is, force them to implement a federal regulatory program.  Congress has no power to commandeer states’ executive officials or legislative processes.[39]  “[T]he Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.”[40]

This principle might seem to prevent Congress from requiring states to give any particular benefits to noncitizens.  But Congress has traditionally been given great deference in the realm of immigration policy.  And even if Congress can’t constitutionally require benefits, there remains the Equal Protection Clause, which will require benefits in most situations.  The difficult question, again, will be what happens when Congress requires, by statute, the provision of benefits in an area where the Equal Protection Clause would not require them.

In New York State, equal protection clearly requires the provision of benefits for lawfully present aliens; nationally, the issue remains to be definitively resolved.


States and localities have a complicated set of questions to navigate when they make decisions about noncitizens and benefits and services.  Sometimes the Equal Protection Clause requires the provision of benefits; sometimes Congress purports to require their denial.

In other areas, federal statutes appear to give states a choice, or to require the provision of benefits, which creates complicated constitutional questions.  States, localities, and courts are likely to continue to struggle with these issues for years to come.


This explainer deals with state and local benefits.  For background on the federal public benefits available to noncitizens, see Congressional Research Service, “Noncitizen Eligibility for Federal Public Assistance,” available at https://www.everycrsreport.com/reports/RL33809.html

A useful guide to the various immigration statuses from the American Immigration Council is available here: https://www.americanimmigrationcouncil.org/research/how-united-states-immigration-system-works-fact-sheet

Another useful guide, from the Immigrant Defense Project, is online here: https://www.immigrantdefenseproject.org/wp-content/uploads/IDP-Immigration-Status-101-Guide-FINAL1.pdf

For a very useful guide to state policies on public benefits for noncitizens, see the Pew Charitable Trust’s “Mapping Public Benefits for Immigrants in the States” (2014): http://www.pewtrusts.org/~/media/assets/2014/09/mappingpublicbenefitsforimmigrantsinthestatesfinal.pdf

The New York State Department of Health has a guide explaining which immigration statuses it considers eligible for Medicaid benefits: https://www.health.ny.gov/health_care/medicaid/publications/docs/gis/08ma009att.pdf

The federal government has issued a guide for state or local agencies trying to interpret immigration documents.  It’s part of the “SAVE” (Systematic Alien Verification for Entitlements) system, a resource for agencies that administer benefits: https://save.uscis.gov/web/media/resourcesContents/SAVEGuideCommonlyusedImmigrationDocs.pdf

For information about the limitations of the SAVE system, see: https://www.americanimmigrationcouncil.org/research/systematic-alien-verification-entitlements-save-program-fact-sheet



* Andy Ayers is Director of the Government Law Center and an assistant professor at Albany Law School.  Research assistance by Olivia Fleming, Brendan Nashelsky, and Michele Monforte.

[1] On the Welfare Reform Act, see https://www.migrationpolicy.org/article/immigrants-and-welfare-use.

[2] On the proposals to make noncitizens deportable for using public benefits, see https://www.vox.com/2018/2/8/16993172/trump-regulation-immigrants-benefits-public-charge.

[3] The federal power to offer different benefits to citizens and noncitizens was affirmed in Mathews v. Diaz, 426 U.S. 67 (1976).

[4] States’ obligation to treat citizens and noncitizens equally was established in Graham v. Richardson, 403 U.S. 365 (1971).

[5] This definition of strict scrutiny is from Bernal v. Fainter, 467 U.S. 216, 227 (1984).

[6] Cases on the political-function exception to strict scrutiny for state laws excluding immigrants include Cabell v. Chavez-Salido, 454 U.S. 432 (1982) (upholding citizenship requirement for probation officers); Ambach v. Norwick, 441 U.S. 68 (1979) (upholding citizenship requirement for public-school teachers); Foley v. Connelie, 435 U.S. 291 (1978) (upholding citizenship requirement for police officers); and Sugarman v. Dougall, 413 U.S. 634 (1973) (striking down a citizenship requirement for civil-service positions because it was not sufficiently related to sovereign functions of government).

[7] The Supreme Court appeared to suggest that rational-basis scrutiny applies to state laws that excluded undocumented people in Plyler v. Doe, 457 U.S. 202 (1982), although the holding of that case was that states must provide an education to undocumented schoolchildren.  See Dandamudi v. Tisch, 686 F.3d 66, 74 (2d Cir. 2012) (interpreting Plyler to allow differential treatment of unauthorized immigrants).  Full disclosure: the author of this Explainer wrote the brief and presented the oral argument to the Second Circuit in Dandamudi.

[8] For statistics on the number of unauthorized immigrants who overstay their visas, see the Center for Migration Studies, http://cmsny.org/publications/jmhs-visa-overstays-border-wall/.

[9] For decisions applying rational-basis scrutiny to noncitizens with temporary visa, see League of United Latin Am. Citizens (LULAC) v. Bredesen, 500 F.3d 523, 531–34, 536–37 (6th Cir. 2007); LeClerc v. Webb, 419 F.3d 405, 415 (5th Cir. 2005), reh’g en banc denied, 444 F.3d 428 (2006).

[10] The Second Circuit rejected an argument that states can deny benefits to temporarily present noncitizens in Dandamudi v. Tisch, 686 F.3d 66, 74 (2d Cir. 2012).

[11] For the New York Court of Appeals’s explanation of exactly who receives strict scrutiny, see Aliessa v. Novello, 96 N.Y.2d 418 (2001), holding that the state law in question violates the “Equal Protection Clauses of the United States and New York State Constitutions insofar as it denies State Medicaid to otherwise eligible PRUCOLs and lawfully admitted permanent residents based on their status as aliens,” id. at 436, and then compare its definition of “PRUCOL” in footnote 2.

[12] Aliessa makes clear that its holding is based on the New York State Equal Protection Clause.  See 96 N.Y.2d at 436.

[13] For discussion of the right to aid and care of the needy as applied to immigrants, see Aliessa, 96 N.Y.2d at 429.

[14] 8 U.S.C. § 1621(c)(1)(A).

[15] Id. § 1621(c)(1)(B).

[16] The enumerated statuses eligible for benefits under § 1621 are “a qualified alien (as defined in section 431 [8 USCS § 1641])”; “a nonimmigrant under the Immigration and Nationality Act” and “an alien who is paroled into the United States under section 212(d)(5) of such Act [8 USCS § 1182(d)(5)] for less than one year.” By using the term “qualified alien,” which is defined in USC 1641, section 1621(a) confers eligibility on several sub-categories of aliens: legal permanent residents; asylees and refugees; aliens whose deportation is withheld under 8 U.S.C. § 1251(b)(3) [see 8 CFR § 208.16]; aliens granted “conditional entry” under 8 USC § 1153(a)(7) before 1980; and aliens who are “Cuban and Haitian entrants” under 8 USC § 1522 (note); and certain battered aliens.  Also eligible are aliens whose deportation is withheld under § 243(h) of the Immigration and Nationality Act, but this is a small category, because this form of relief has been unavailable since 1997.

[17] Id. § 1621(b).

[18]   On Temporary Protected Status, see  http://www.uscis.gov/humanitarian/temporary-protected-status-deferred-enforced-departure/temporary-protected-status.

[19] On DACA, see http://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-daca

[20] See Leon Wildes, The Nonpriority Program of the Immigration and Naturalization Service Goes Public: The Litigative Use of the Freedom of Information Act, 14 SAN DIEGO L. REV. 42 (1976-77); for a more recent history, see Shoba Wadhia, The Role of Prosecutorial Discretion in Immigration Law, 9 Conn. Pub. Int. L. J. 244 (2010).

[21] http://www.uscis.gov/humanitarian/temporary-protected-status-deferred-enforced-departure/deferred-enforced-departure

[22] See info on the Compact of Free Association Agreements here: http://www.uscis.gov/sites/default/files/files/pressrelease/Micronesia_MarshallIslFS.pdf

[23] For statutes making DACA recipients eligible for bar admission, see H.R. 755, § 454.021, 2014 Leg., Reg. Sess. (Fla. 2014); and In re Garcia, 58 Cal. 4th 440 (2014).  See also Wendi Adelson, Lawfully Present Lawyers, 18 Chap. L. Rev. 387, 399 (2015).

[24] Note: the theory adopted in Vargas (that state sovereignty prevents Congress from dictating the use of state legislatures for decisions about immigrants’ benefits) was presented to the Second Department in an amicus brief that was signed by the author of this Explainer.  For an elaboration of the theory and its implications for other areas of law, see Andrew B. Ayers, Federalism and the Right to Decide Who Decides, Villanova L. Rev. (forthcoming 2018).

[25] Courts have followed Vargas by admitting DACA recipients to the bar in New York’s Third Department, Pennsylvania, and New Jersey.  See Matter of Anonymous, 152 A.D.3d 1046 (3d Dep’t 2017); See ACLU Pennsylvania, “Pennsylvania Admits DACA Recipient to the Bar,” available at https://www.aclupa.org/news/2017/12/19/pennsylvania-admits-daca-recipient-bar-; see also Memorandum of Law in Support of Application of Parthiv Patel (Letter to Pa. Bd. of Law Examiners, Feb. 21, 2017), available at https://www.aclupa.org/download_file/view_inline/3179/1106/; See ACLU, DACA Recipient Sworn In As Lawyer By NJ AG (Jan. 24, 2018), https://www.aclu.org/news/daca-recipient-sworn-lawyer-nj-ag.

[26] For New York regulations admitting teachers to licensure under the Vargas authority, see 8 N.Y.C.R.R. § 80-1.3 (for teacher licensure, “pursuant to 8 USC § 1621(d), no otherwise qualified alien shall be precluded from obtaining a professional license under this Title if any individual is not unlawfully present in the United States, including but not limited to applicants granted deferred Action for Childhood Arrivals relief or similar relief from deportation8 NYCRR § 80-1.3”); 8 N.Y.C.R.R. § 59.4 (same language applied to other professions); 2016-10 N.Y. St. Reg. 19 (Mar. 9, 2016; Volume 38, Issue 10) (proposed regulation); 2016-22 N.Y. St. Reg. 23, 25 (final rule and response to comments) (“While the Vargas decision is based on an intrusion on the role of the judiciary over bar admissions in violation of the Supremacy Clause, we believe that the Court’s reasoning applies equally to the adoption of regulations having the force and effect of law by an administrative agency that is part of the executive branch of New York government, another one of the three coequal branches of government under the New York Constitution.”).  http://www.nysed.gov/news/2016/board-regents-permanently-adopts-regulations-allow-daca-recipients-apply-teacher. For more on the process leading to these changes, see Janet M. Calvo, Professional Licensing and Teacher Certification for Non-Citizens: Federalism, Equal Protection and a State’s Socioeconomic Interests, Col. J. Race & Law (forthcoming).

[27] 8 U.S.C. § 1625.

[28] 8 U.S.C. § 1623.

[29] On in-state tuition for undocumented students, see the National Immigration Law Center’s table at https://www.nilc.org/issues/education/eduaccesstoolkit/eduaccesstoolkit2/#maps.  See also the National Conference of State Legislatures’ excellent overview at http://www.ncsl.org/research/education/undocumented-student-tuition-overview.aspx.

[30] For states that bar enrollment to undocumented students, see the National Immigration Law Center’s table at https://www.nilc.org/issues/education/eduaccesstoolkit/eduaccesstoolkit2/#maps.

[31] On pending bills that would expand or limit in-state tuition for undocumented students, see this overview by National Association of Student Personnel Administrators (NASPA):  https://www.naspa.org/rpi/posts/in-state-tuition-for-undocumented-students-2017-state-level-analysis.

[32] 8 U.S.C. § 1621(a); for the definition of “qualified alien,” see 8 U.S.C. § 1641.

[33] 8 U.S.C. § 1622(a).

[34] See, e.g., Korab v. Fink, 797 F.3d 572, 582 (9th Cir. 2014).

[35] The New York Court of Appeals applied strict scrutiny to a denial of benefits in spite of § 1622’s grant of discretion in Aliessa, discussed above.  Note, however, that this interpretation could in theory be overruled by the U.S. Supreme Court, even though the state court has held that the state Equal Protection Clause requires treating noncitizens equally.  Valid federal statutes preempt state constitutional provisions.  If the Supreme Court were to hold that Congress has the power to promulgate a statute that gives states the discretion to treat immigrants differently, that statute would preempt the state constitution.  Thus, the Court could effectively nullify Aliessa by revisiting its statement that “Congress does not have the power to authorize the individual States to violate the Equal Protection Clause.” Graham v. Richardson, 403 U.S. 365, 382 (1971)

[36] Graham v. Richardson, 403 U.S. 365, 382 (1971) (“Although the Federal Government admittedly has broad constitutional power to determine what aliens shall be admitted to the United States, the period they may remain, and the terms and conditions of their naturalization, Congress does not have the power to authorize the individual States to violate the Equal Protection Clause.”).

[37] On benefits for green-card holders, refugees, and asylees after specified periods of time, see 8 U.S.C. § 1622(b).

[38] On benefits for servicemembers, veterans, and their children, see 8 U.S.C. § 1622(b)(3).

[39] On commandeering, see Printz v. United States, 521 U.S. 898, 933 (1997) (executive officials); New York v. United States, 505 U.S. 144, 161-66 (1992) (legislative processes).

[40] New York, 505 U.S. at 162.

“Sanctuary” Policies: What are the Decisions Facing State and Local Governments?

by Andy Ayers*          

The word “sanctuary” has no legal definition; it can refer to a diverse array of state and local policies on immigration enforcement.

This explainer gives an overview of the kinds of state and local policies that are called “sanctuary.”  Policies in this area fall somewhere on a spectrum from full support for immigration enforcement to active resistance.  Many jurisdictions are somewhere in the middle—neither supporting nor resisting federal immigration enforcement, but staying neutral.

State and local governments make four kinds of choices about immigration enforcement:

  • Should they use their resources (personnel, time, and so on) to participate in federal enforcement activities?
  • Should they share information about noncitizens with federal authorities?
  • Should they detain noncitizens at the request of the federal government?
  • Should they grant federal immigration agents access to physical sites controlled by the state or locality?

It is tempting to think of a “sanctuary” as a jurisdiction that answers “no” to these questions.  But real answers are rarely that simple. Every jurisdiction, for example, shares information with federal authorities, regardless of whether it calls itself a “sanctuary.” Thus, the final choice each jurisdiction makes—whether to publicly refer to itself as a “sanctuary”—can be confusing, or even misleading.

No jurisdiction is purely a sanctuary, and no jurisdiction supports federal immigration enforcement to the fullest possible extent. So, to understand the policies behind the word “sanctuary,” we need to understand the range of choices governments make in each category.

I.  Whether to Use Investigative Resources to Support Immigration Enforcement

State and local power to participate in immigration enforcement is limited. The federal government has exclusive power over the regulation of immigration, so states and localities can’t make their own immigration-enforcement laws.[1]  But state law-enforcement officials can participate in immigration enforcement if they choose; for example, it’s generally permissible for state law-enforcement officers to ask questions about immigration status.[2]

Thus, states and localities must make choices about whether to participate directly in federal immigration enforcement by contributing state and local resources like personnel, time, use of equipment, and the money it takes to provide those resources.

The federal government cannot compel local law-enforcement personnel to participate in investigations.[3] So local authorities must make choices about the extent to which they will participate in immigration investigations. States and localities have several options.

Becoming ICE deputies:  287(g) agreementsThe most aggressive way for localities to participate in immigration enforcement is to partner with the federal agency that enforces immigration law, U.S. Immigration and Customs Enforcement (ICE), in what are known as “287(g)” agreements.[4] Under the 287(g) program, the federal government deputizes local law-enforcement agents as agents of ICE.

The 287(g) program is voluntary; no jurisdiction can be required to participate in it.[5] 287(g) agreements are made between ICE and local law-enforcement officials, which means that in New York State, it is independently elected sheriffs who make decisions at the county level.  For cities or towns, it is law-enforcement officials who enter the agreement, but those officials are typically subject to oversight from other elected officials. In New York State, Rensselaer County is currently the only 287(g) jurisdiction.[6]

Although localities operating under 287(g) perform federal immigration-enforcement tasks, the agreements do not provide funding to reimburse the costs of those activities, only the cost of training.

Contributing resources without becoming deputies.  287(g) agreements are only one way in which localities can participate in immigration enforcement. Jurisdictions that want to support immigration enforcement can do so informally, without a 287(g) agreement, by riding along with ICE officers, conducting joint investigations, or by sharing investigative information with ICE.  Many jurisdictions do so.  For example, court officers might help ICE make arrests in state courthouses (advocates have reported this happening in New York State courthouses[7]).

Staying neutral.  Most United States jurisdictions have chosen not to enter into 287(g) agreements. Many have adopted policies under which they do not participate in immigration investigations or share information with ICE.  But these policies almost always have exceptions. For example, if local authorities are investigating a drug-trafficking network, and ICE is investigating some of the same people, most local policies allow the exchange of information. It is difficult to define “neutrality” or “sanctuary” in such situations.

Efforts to undermine federal enforcement.  While most “sanctuary” policies aim for a kind of neutrality—that is, nonparticipation in immigration enforcement—there are cases where localities have more directly attempted to undermine federal enforcement efforts.

For example, the mayor of Oakland in February 2018 made a public announcement warning noncitizens of a planned ICE sweep.[8] It’s unclear what impact this had; Attorney General Sessions accused the mayor of being responsible for “800 wanted criminals that are now at large in that community,” prompting ICE’s local spokesperson to resign, accusing Sessions and agency officials of lying about the impact of the mayor’s statement.[9] In any event, this sort of resistance by local officials is very unusual.

II.  Whether to Detain Noncitizens at Federal Authorities’ Request

Another choice states and localities must make is whether to detain or hold noncitizens in custody at the request of federal authorities.

In some cases, a noncitizen in local custody is the subject of a criminal warrant—i.e., one issued by a judge upon a showing of probable cause to believe that the noncitizen in question has engaged in criminal conduct. Every jurisdiction of which we are aware honors criminal warrants.

But being present in the United States without authorization is not, by itself, a crime.  Therefore, most of the allegedly unauthorized immigrants whom ICE might seek to detain are not subject to criminal warrants. Instead, ICE asks localities to detain them by issuing a document called a “detainer.”[10]

Detainers.  When a state or locality has incarcerated a noncitizen for non-immigration-related reasons, and ICE becomes aware that the noncitizen is in custody, ICE may issue a detainer.  The detainer indicates that there is probable cause to believe that the noncitizen is “removable” (i.e., deportable).

Detainer requests that the state or locality “maintain custody of the alien for a period not to exceed 48 hours beyond the time when he/she would otherwise have been released from [state or local] custody to allow DHS to assume custody.”[11] (The detainer form also requests that the locality give DHS notice before releasing the detainee; see the discussion of information-sharing, below.) Detainers are not a guarantee of deportation; in Texas, for example, only 15% of detainers end up leading to deportation.[12]

Detainers are requests, not commands, so there is nothing unlawful about declining to comply with them. Most “sanctuary” policies include a provision stating that the jurisdiction will not honor detainers.  Some other jurisdictions decline to honor detainers simply because it may be unlawful to honor them.

Is it lawful to comply with detainers?  There is a significant legal question about whether it is lawful for a state or locality to hold a noncitizen in custody beyond the time when there is an independent reason to detain them. It is generally a violation of the Fourth Amendment to hold someone in custody without probable cause to believe they have committed a crime, and immigration detainers offer reason to believe only that the person has engaged in a civil offense. Thus, multiple courts have found it unlawful to comply with detainers, including a trial court in New York State.[13]  The Third Circuit has allowed a person mistakenly held pursuant to an ICE detainer to sue the county for money damages.[14] Because of these precedents, the New York State Sheriffs’ Association advised sheriffs in 2014 not to comply with detainer.[15] I

It is important not to overgeneralize about jurisdictions’ polices on detainers.  Many jurisdictions that generally decline to comply with detainers will comply with them for certain kinds of criminal convictions.  For example, New York City (a prominent “sanctuary”) has a policy of complying with detainers for noncitizens convicted of “one of 170 serious crimes within the last five years—including arson, homicide, rape or robbery—and in cases in which a judge has signed a detainer request.”[16]

Prosecutorial decisions that cause deportation.  Although many jurisdictions refer to themselves as “sanctuaries” because they do not directly turn over noncitizens to ICE, states and localities take many other actions that can lead to deportation. As noted below, whenever a noncitizen is arrested and fingerprinted, ICE receives the information. And when local authorities criminally prosecute a noncitizen, their conviction can often lead to deportation. A large number of crimes can result in noncitizens being removable or inadmissible.[17]

Indeed, the risk of deportation resulting from criminal conviction is so significant that the Supreme Court has found criminal defense attorneys obligated to know, and advise their clients of, the potential immigration consequences of a guilty plea.[18]

Thus, prosecutors’ decisions about what charges to file can result in noncitizens being deported—even those with legal status.  Some prosecutors have adopted policies of trying to charge defendants in a way that minimizes immigration consequences.[19]

III.  Whether to Share Information with Federal Authorities

Many “sanctuary” policies limit the extent to which states and localities will share information about noncitizens with federal authorities.  There are many ways in which states and localities might share information with federal immigration authorities. Some of them are direct, but others are indirect and inadvertent. This section lists some of the main ways in which federal authorities can obtain information about noncitizens from local governments.

Fingerprint checks.  When localities submit fingerprints to the Federal Bureau of Investigation (FBI) to check a person’s criminal history, those fingerprints are automatically shared with the Department of Homeland Security (DHS) to check against its immigration records. And localities cannot ask the FBI to refrain from sharing the fingerprints with DHS.[20]

Thus, every jurisdiction of which we are aware effectively shares noncitizens’ fingerprints with ICE whenever those fingerprints are taken.

Notifying ICE that a detainee will be released.  Immigration detainers, discussed above, request not only that localities hold noncitizens in custody, but also that they “[n]otify DHS as early as practicable (at least 48 hours, if possible) before the alien is released from [state or local] custody.”[21] Again, this is a request, not an order—the federal government lacks the power to compel localities to share information.

Many of the jurisdictions that call themselves “sanctuaries” do not comply with requests for advance notice of release.

The federal government has indicated that it will begin to require, as a condition of grants that many localities receive, that localities certify that they honor requests for advance notice of release.[22]

Allowing ICE to see records. It’s not unusual for ICE to ask to see jail records.[23]  Some jurisdictions require ICE agents to obtain a sheriff’s approval before seeing jail records. Or they might allow ICE to see some jail records but not others.[24]

Sharing criminal and surveillance databases.  A variety of state and local databases contain information about immigration status. For example, some police departments maintain list of suspected gang members, and share these lists with ICE. These lists can incidentally provide information about suspected immigration violations.

Surveillance databases, too, can represent a form of indirect information-sharing with ICE. Many localities use a company called Vigilant Solutions, which operates license-plate databases that compile information about cars’ whereabouts from traffic cameras and other scanners.[25] Participating localities upload license-plate data from traffic cameras; Vigilant can then check its database to see where a given license plate was last seen. Although several of the jurisdictions that participate in the system are “sanctuaries,” Vigilant shares its database with ICE, which means participating municipalities are indirectly granting ICE access to their traffic cameras and other surveillance data.

Access to benefits records.  According to the U.S. Government Accountability Office (GAO), federal authorities have used various databases to locate undocumented immigrants, including “[p]ublic and private databases that record information concerning benefits” and “department of motor vehicle records.”[26] Indeed, ICE agents told the GAO that there was no need to ask non-immigrants to voluntarily provide their address data, because ICE could already find that data through such records.[27]

For some programs, federal access to state databases is automatic. Medicaid, for example, is a joint federal-state program; both federal and state entities have access to shared benefits databases.  And student visas are managed by universities through a system called SEVIS, which is designed to ensure that information about noncitizen students is instantly communicated to federal authorities.

Lawfulness of policies against information-sharing.  Under the Tenth Amendment, the federal government cannot compel states to share information. However, a federal statute (8 U.S.C. § 1373) says that states and localities “may not prohibit, or in any way restrict, any government entity or official from sending” immigration information to ICE. Nor can states and localities prohibiting maintaining immigration status information.[28]

Attorney General Jeff Sessions issued a memo defining a “sanctuary” jurisdiction as one that “willfully” violates § 1373.[29] But no jurisdiction of which we are aware acknowledges an intent to violate § 1373; most “sanctuary” policies prohibit sharing of information “except as required by law,” often specifically providing that the policy should be construed as consistent with § 1373.  (This can make it hard to know exactly what information local employees should share.)

Policies against gathering information. Because of the various ways in which information can be received by federal authorities, many “sanctuary” jurisdictions prohibit their employees from inquiring about immigration status.

Although § 1373 prohibits policies that ban information-sharing, it says nothing about localities’ ability to prohibit their employees from inquiring about immigration status.

IV.  Whether to Grant Access to Government-Controlled Sites

Another kind of decision localities must make is to what extent they will allow immigration authorities to access property or facilities owned by the local government.

Sometimes, localities have no choice: if ICE agents have a criminal warrant, the law requires granting them access.  And we are aware of no jurisdiction that has attempted to avoid compliance with a judicial warrant.

Also, if the locally-controlled property is generally open to the public, it is unclear whether the law allows the locality to deny access to ICE.[30]

The most high-profile controversy over ICE access to sites controlled by state and local government involves courthouses. Controversy has erupted over ICE’s practice of making arrests in or near state courthouses.  State officials have called for the practice to end.[31] But ICE has made clear the practice will continue.

Another kind of government-controlled site includes jails, prisons, and probation offices. Some jurisdictions allow ICE agents to enter their jails or prisons freely, while others require the agents to get prior authorization from the sheriff or some other official. Still other jurisdictions refuse to allow ICE agents into jails unless they produce a criminal warrant. Because unlawful presence is not a criminal offense, so ICE is often unable to produce a criminal warrant.

The federal government has indicated that it will begin to require, as a condition of grants that many localities receive, certification that the locality allows federal agents access to correctional facilities to interview suspected undocumented immigrants.[32]

Significant numbers of arrests happen on public sites. For example, 72 percent of ICE arrests in Colorado between October 2016 and May 2017 occurred at courthouses and probation offices.[33] No jurisdiction of which we are aware has altogether attempted to prohibit ICE from accessing government-controlled sites, and even if it were possible to do so, many ICE arrests happen near such facilities when noncitizens leave or arrive.  Even in “sanctuary” jurisdictions, noncitizens are regularly arrested on sites controlled by the state or locality.

V.  Whether to Use the Word “Sanctuary”

As the discussion above makes clear, the term “sanctuary” is used to apply to a large variety of policies.  Because the term “sanctuary” has no legal meaning, the decision whether to refer to a given jurisdiction as a “sanctuary” is a political one, not a legal one. Different jurisdictions may choose to use the term, or not, for different reasons.

Undoubtedly, some jurisdictions choose to refer to themselves as “sanctuaries” to send a message about their disagreement with federal immigration-enforcement policies. But other jurisdictions may wish to avoid the term precisely because it signals disagreement with those policies. Some jurisdictions may adopt policies similar to those in “sanctuary” jurisdictions for reasons unrelated to immigration policy. For example, they might wish to avoid donating their resources to support federal immigration enforcement, and to avoid potential liability for detaining people pursuant to detainers.

Still other jurisdictions might wish to avoid using the term “sanctuary” because it is misleading. As discussed above, even jurisdictions that identify themselves as sanctuaries typically share significant amounts of information with federal authorities, directly and indirectly, and provide no safe harbor for noncitizens on state-owned properties like courthouses and jails.  Thus, the term may mislead noncitizens or others into thinking that “sanctuary” jurisdictions are zones in which immigration enforcement does not take place.  The term “sanctuary” has many meanings, but in no category does it refer to a complete absence of immigration enforcement.


For more on detainers, see ICE, “Detainer Policy,” https://www.ice.gov/detainer-policy; the regulations governing detainers are at 8 C.F.R. § 287.7. Another useful resource is Lazaro Zamora, “Sanctuary Cities and Immigration Detainers: A Primer” (Bipartisan Policy Center), https://bipartisanpolicy.org/blog/sanctuary-cities-and-immigration-detainers-a-primer/

For more information on how municipal data practices make information available to federal enforcement authorities, see Sunlight Foundation, Protecting Data, Protecting Residents: 10 Principles for Responsible Municipal Data Managementhttps://sunlightfoundation.com/wp-content/uploads/2017/02/Protecting-data-protecting-residents-whitepaper.pdf.

For more information on § 1373, including information about possible consequences of violating it and recently proposed amendments, see Law Enforcement Immigration Task Force, A Path to Public Safety: Background on 8 U.S.C. § 1373 (Sept. 2017), https://leitf.org/wp-content/uploads/2017/09/Path-to-Public-Safety-Background-on-8-U.S.C.-1373.pdf.

For more information about state and local governments’ role in immigration law, visit our website: www.albanylaw.edu/glc/immigration  



* Andy Ayers is Director of the Government Law Center and a visiting assistant professor at Albany Law School.

[1] State and local governments cannot make laws that add punishment for immigration-related offenses to whatever punishment the federal government already imposes. See United States v. South Carolina, 720 F.3d 518, 532-533 (4th Cir. 2013).

[2]  See Arizona v. United States, 567 U.S. __, 132 S. Ct. 2492, 2507-2508 (2012).

[3] State sovereignty prevents the federal government from ordering state law-enforcement officers to implement federal programs. See Printz v. United States, 521 US 898 (1997).

[4] Section 287(g) of the Immigration and Nationality Act is codified at 8 U.S.C. § 1357(g).

[5] U.S. Immigration & Customs Enforcement, “Fact Sheet: Delegation of Immigration Authority Section 287(g),” https://www.ice.gov/287g.

[6] All of the jurisdictions participating in the 287(g) program are listed at https://www.ice.gov/287g.

[7] Felipe de la Hoz & Emma Whitford, “Court Officers Are Aiding in Immigration Arrests, Say Lawyers,” Village Voice (Nov. 16, 2017), https://www.villagevoice.com/2017/11/16/court-officers-are-aiding-in-immigration-arrests-say-lawyers/.

[8] Hamed Aleaziz, “ICE confirms 150-plus arrests in California sweep, slams Schaaf’s early warning,” San Fran. Chronicle (Feb. 27, 2018), https://www.sfchronicle.com/bayarea/article/Reports-of-California-immigration-sweep-are-true-12714833.php.

[9] Meagan Flynn and Avi Selk, “ICE spokesman resigns, citing fabrications by agency chief, Sessions about California immigrant arrests,” Wash. Post (Mar. 13, 2018).

[10] See ICE, “Detainer Policy,” https://www.ice.gov/detainer-policy; see also 8 C.F.R. § 287.7.

[11] ICE, Form I-247A, https://www.ice.gov/sites/default/files/documents/Document/2017/I-247A.pdf.

[12] For statistics on the number of detainers leading to deportation, see Gus Bova, “Myth-Busting Immigration Detainers: They’re Optional, Costly and Rarely Lead to Deportation,” Texas Observer (Feb. 7, 2017), https://www.texasobserver.org/immigration-sanctuary-cities/.

[13] See People ex rel. Swenson v. Ponte, 46 Misc. 3d 273 (N.Y. Sup. Ct. 2014). But see People v. Xirum, 45 Misc. 3d 785, 791 (N.Y. Sup. Ct. 2014) (holding it permissible to detain a defendant for 48 hours when there’s an order of removal).  See generally Lunn v. Commonwealth, 477 Mass. 517 (2017).

[14] Galarza v. Szalczyk, 745 F.3d 634 (3d Cir. 2014); see also Mercado v. Dallas Cnty., 2017 U.S. Dist. LEXIS 5785, *15 (N.D. Tex. Jan. 17, 2017). For a compilation of authorities, see Christine M. G. Davis, Immigration Detainers or Holds Issued Pursuant to 8 C.F.R. § 287.7, 10 A.L.R. Fed. 3d Art. 1 (2016).

[15] Kirk Semple, “New York State Sheriffs Shying Away From Immigration Detention,” N.Y. Times (July 31, 2014), https://www.nytimes.com/2014/07/31/nyregion/new-york-state-sheriffs-shying-away-from-immigration-detention-.html.

[16] Liz Robbins, “In a ‘Sanctuary City,’ Immigrants Are Still at Risk,” N.Y. Times (Feb. 27, 2018).

[17] Shakeer Rahman & Robin Steinberg, “Sanctuary Cities in Name Only,” N.Y. Times (Feb. 15, 2017), https://www.nytimes.com/2017/02/15/opinion/sanctuary-cities-in-name-only.html.

[18] Padilla v. Kentucky, 130 S. Ct. 1473 (2010).

[19] See Corinne Ramey, “Some Prosecutors Offer Plea Deals to Avoid Deportation of Noncitizens,” Wall Street Journal (July 7, 2017).

[20] Fingerprints are shared under the “Secure Communities” program. See ICE, “Secure Communities,” https://www.ice.gov/secure-communities.

[21] ICE Form I-247A, available at  https://www.ice.gov/sites/default/files/documents/Document/2017/I-247A.pdf.

[22] See U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Assistance, “State Criminal Alien Assistance Program: FY 2017 Program Requirements and Application Instructions,” at page 7,  https://www.bja.gov/Funding/17SCAAP_Program_Requirements.pdf.

[23] Id. at 6.

[24] See, e.g., U.S. Department of Justice, Office of the Inspector General, Audit Division, “Cooperation Of SCAAP Recipients in the Removal of Criminal Aliens from the United States,” at p. 5 (Audit Report 07-07, Jan. 2007), https://oig.justice.gov/reports/OJP/a0707/final.pdf.

[25] April Glaser, “Sanctuary Cities Are Handing ICE a Map,” Slate (Mar. 13, 2018),  https://slate.com/technology/2018/03/how-ice-may-be-able-to-access-license-plate-data-from-sanctuary-cities-and-use-it-for-arrests.html.

[26] Government Accountability Office, Alien Registration: Usefulness of a Nonimmigrant Alien Annual Address Reporting Requirement Is Questionable, at 3 (Jan. 2005),  https://www.gao.gov/assets/250/245208.pdf.

[27] Id.

[28] The statute prohibiting state bans on information-sharing is 8 U.S.C. § 1373. An almost-identical prohibition appears in 8 U.S.C. § 1644.

[29] Office of the Attorney General, “Implementation of Executive Order 13768, ‘Enhancing Public Safety in the Interior of the United States’,” (May 22, 2017), available at  http://apps.washingtonpost.com/g/documents/politics/implementation-of-executive-order-13768-enhancing-public-safety-in-the-interior-of-the-united-states/2445/.

[30] See Noah Manskar, “City Council Members Push Top State Judge To Bar ICE From Courts,” Patch (Feb. 20, 2018), https://patch.com/new-york/new-york-city/city-council-members-push-top-state-judge-bar-ice-courts (quoting Office of Court Administration spokesman Lucian Chalfen as saying that OCA cannot legally “shut down a public building to law enforcement”).

[31] See, e.g., “New York AG Eric Schneiderman and Acting Brooklyn DA Eric Gonzalez Call for ICE to End Immigration Enforcement Raids in State Courts,” (Aug. 3, 2017), https://ag.ny.gov/press-release/new-york-ag-eric-schneiderman-acting-and-brooklyn-da-eric-gonzalez-call-ice-end.

[32] See U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Assistance, “State Criminal Alien Assistance Program: FY 2017 Program Requirements and Application Instructions,” at page 7,  https://www.bja.gov/Funding/17SCAAP_Program_Requirements.pdf.

[33] Tory Johnson, “Immigration Arrests at Courthouses Are Under Fire From State Officials,” Immigration Impact (Sept. 28, 2017), http://immigrationimpact.com/2017/09/28/immigration-arrests-at-courthouses-fire-state-officials/.