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.

Conclusion

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.

RESOURCES

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

 

Endnotes

* 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.

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“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.

Resources

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  

 

Endnotes

* 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/.

U Visa: Guidance for Local Law Enforcement and Investigative Bodies

by Kendra Sena*

Introduction

Immigrants, especially women and children, can be particularly vulnerable to serious crimes like human trafficking, domestic violence, sexual assault, and wage theft.[1] Those without lawful status may be reluctant to report crimes to law enforcement or to assist in the investigation or prosecution of crimes for a variety of reasons, including fear of deportation.[2] To support law enforcement in the prosecution of crimes committed against immigrants, and to facilitate the reporting of those crimes, Congress created the U Visa.[3]

A U Visa is a temporary visa for victims of certain crimes who have been helpful in the investigation or prosecution of the crime. The purpose of the U Visa is to “strengthen the ability of law enforcement agencies to detect, investigate, and prosecute” certain serious crimes and to protect victims.[4]

State and local law enforcement and investigative bodies, such as police, sheriffs, protective service agencies, prosecutors, as well as state and local judges, can help a person apply for a U Visa by certifying that the person was a victim of a crime and is, has been, or is willing to be helpful in the investigation or prosecution of a crime. Such certification is necessary but not sufficient to obtain a U Visa; the Department of Homeland Security (DHS), through U.S. Citizenship & Immigration Services (USCIS), makes the final determination whether to issue a U Visa to an applicant.

The U Visa is an important tool for local governments to build trust with immigrant crime victims and communities and to strengthen enforcement efforts against those who target immigrants. This explainer gives an overview of the U Visa and the role of state and local government officials in the U Visa process.

I. What is a U Visa?

A U Visa is a form of relief that the federal government can grant to victims of certain crimes who have been helpful or are likely to be helpful in the detection, investigation, or prosecution of criminal activity. A U Visa allows a person to remain in the U.S. for up to four years and gives them access to certain benefits, including the right to work. The U Visa does not confer permanent immigration status; only after several years, and if certain conditions are met, may the person apply for Lawful Permanent Resident (LPR) status (i.e., a “green card”), which may provide a pathway to citizenship.

II. What role do state and local government officials play?

State and local enforcement and investigative bodies have a limited but critical role in the U Visa process. To apply for a U Visa, a person must submit, among other things, a certification that they have been the victim of a crime and have been helpful in the investigation or prosecution of a crime. A state or local enforcement or investigative body may certify as much by completing a certification form.

The U Visa certification is a required form that the applicant must include in the U Visa application. But the certification alone is not determinative of U Visa eligibility, and does not itself confer any status or benefit on the applicant. Nor does it speak to the character of the applicant, their eligibility for a visa, or express an opinion as to whether a U Visa should be granted. Instead, the certification serves a limited and targeted purpose:  to verify that the person applying for the visa has been a victim and that they have been, are being, or are likely to be helpful in the detection, investigation, prosecution, conviction, or sentencing of criminal activity.[5]  USCIS, the federal agency charged with reviewing visa applications, makes the final decision regarding U Visa eligibility and issuance.

A person cannot apply for a U Visa without a certification from an enforcement or investigative body. Thus, while the role of state and local government in the U Visa process is limited, the role is crucial. The decision whether to sign a certification is that of the certifying body. It is therefore important that local governments establish policies and procedures regarding U Visa certification.

III. Process for certifying a U Visa

To be eligible for a U Visa, an applicant must submit Form I-918, Supplement B, completed by a certifying agency. The form and its instructions are available on the USCIS website at http://www.uscis.gov. The form must be signed by an official from a certifying agency, and verifies that the applicant was the victim of a qualifying crime, and has been helpful or is likely to be helpful in the investigation or prosecution of criminal activity.

Certifying agencies include state and local bodies responsible for the investigation, prosecution, conviction, or sentencing of the criminal activity, and include (but are not limited to):

  • Federal, state, and local law enforcement agencies;
  • Federal, state, and local prosecutors’ offices;
  • Federal, state, and local judges;
  • Federal, state, and local family protective services;
  • Federal and state Departments of Labor;
  • Other investigative agencies.[6]

The official providing the certification must be:

  • The head of the certifying agency;
  • An official in a supervisory role who has been specifically designated[7] by the head of the certifying agency to issue U Visa certifications on behalf of that agency; or
  • A federal, state, or local judge.[8]

Qualifying crime or qualifying criminal activity includes one or more of the following in violation of Federal, State or local criminal law of the United States:

Abduction Abusive sexual contact
Blackmail Domestic violence
Extortion False imprisonment
Felonious assault Female genital mutilation
Fraud in foreign labor contracting Hostage-taking
Incest Involuntary servitude
Kidnapping Manslaughter
Murder Obstruction of justice
Peonage Perjury
Prostitution Rape
Sexual assault Sexual exploitation
Slave trade Stalking
Torture Trafficking
Unlawful criminal restraint Witness tampering

Qualifying crimes also include “any similar activity,” meaning criminal offenses in which the nature and elements of the offenses are substantially similar to the statutorily enumerated list of criminal activities. Also included is an attempt, conspiracy, or solicitation to commit any of the above and other related crimes.[9]

Helpfulness standard. Helpfulness means the victim possesses information that was, is, or is likely to assist law enforcement or an investigative body in the investigation or prosecution of a crime of which they are the victim.

A current investigation, the filing of charges, a prosecution or conviction are not required in order for a victim of a crime to have been “helpful.” Reporting a crime, even where arrest or prosecution is impossible—when the perpetrator has fled, for example—is still helpful.

In the case of a victim of a crime who is under the age of 16 when the crime first occurs, a parent, guardian or “next friend” of the child may provide the required assistance.[10]  A “next friend” is a person who appears in a lawsuit to act for the benefit of an immigrant who is a child, or is incapacitated or incompetent, or who has suffered substantial physical or mental abuse as a result of being a victim of qualifying criminal activity. [11]  The next friend is not a party to the legal proceeding and is not appointed as a guardian.[12]

USCIS review. In addition to the certification form, a person seeking a U Visa must submit an application form (I-918, “Petition for U Nonimmigrant Status”) and considerable supporting materials. The applicant must show that they have suffered substantial physical or mental abuse as a result of having been a victim of a qualifying crime, and that they are admissible to the United States. Note that the certifying agency does not have to certify that the victim suffered substantial abuse, nor that they are admissible; the certification form speaks only to the fact that the applicant has been a victim of a qualifying crime and that they are willing to be helpful in the investigation or prosecution of the crime.

As part of its review of the U Visa application, USCIS conducts a thorough background investigation, Federal Bureau of Investigation (FBI) fingerprint and name checks, and a review of the applicant’s criminal history, immigration history, and other background information.[13] USCIS may request additional information from the applicant or certifying agency if questions arise.[14]

The number of U Visas that can be awarded in any year is limited by statute to 10,000.[15]  Once that cap is reached, applicants are put on a waiting list.[16] An analysis of recent adjudications puts the current wait time at over two years for review and placement on the waiting list.[17]

Conclusion

The U Visa is an important tool for local governments to strengthen enforcement efforts against criminals who target immigrants. A strong policy favoring U Visa certifications in appropriate cases communicates to immigrant communities a commitment to protecting victims of crime. Police departments, sheriffs’ departments, prosecutors, protective service agencies, and state and local judges play a vital role in building trust with immigrant communities in order to increase public safety and the effectiveness of the justice system.

Best Practices

  1. Establish a formal policy regarding U Visas for your local government, enforcement body, court, or agency. Train first responders, officers, and other personnel on U Visa eligibility and the process for certifying a U Visa application.
  2. Conduct outreach to immigrant communities and their advocates explaining the U Visa and the agency’s role in certifying U Visa applications.
  3. Ensure fairness by implementing a review process for U Visa certification requests.

Resources

The Department of Homeland Security (DHS) has issued a Resource Guide for Federal, State, Local, Tribal, and Territorial Law Enforcement, that includes a helpful FAQ, available at: https://www.dhs.gov/publication/u-visa-law-enforcement-certification-resource-guide

For an excellent guide for local law enforcement and prosecutors, including a model policy and sample outreach materials, see: http://niwaplibrary.wcl.american.edu/pubs/uvisatoolkit-police-proscutors/

A useful step-by-step guide for family court judges and other judges in NY can be found at: http://immigrants.moderncourts.org/wp-content/uploads/sites/2/2017/04/U-visaCertificationGuidance.pdf

For a compelling case study of one police department’s experience with U Visas, see: http://www.policeforum.org/assets/docs/Subject_to_Debate/Debate2017/debate_2017_junaug.pdf

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

 

ENDNOTES

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

[1] The Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386 § 1513, 114 Stat. 1533 (2000) (codified as amended in various sections of the U.S.C.) [hereinafter VTVPA].

[2] Dep’t of Homeland Sec., U and T Visa Law Enforcement Resource Guide, (last updated Jan. 8, 2016), https://www.dhs.gov/sites/default/files/publications/U-and-T-Visa-Law-Enforcement-Resource%20Guide_1.4.16.pdf [hereinafter DHS Resource Guide].

[3] See VTVPA at 1533-34.

[4] VTVPA at 1533 (“The purpose of this section is to create a new nonimmigrant visa classification that will strengthen the ability of law enforcement agencies to detect, investigate, and prosecute cases of domestic violence, sexual assault, trafficking of aliens, and other crimes … committed against aliens, while offering protection to victims of such offenses in keeping with the humanitarian interests of the United States.”).

[5] 8 U.S.C. 1184(a)(15)(U).

[6] 8 C.F.R. 214.14(a)(2).

[7] In the case of a designated official, USCIS recommends including a letter signed by the agency head that reflects that person with a particular rank or title within the agency has been designated a signing official. See DHS Resource Guide.

[8] 8 C.F.R. §  214.14 (a)(3)(i-ii).

[9] 8 U.S.C. (a)(15)(U)(iii).

[10] 8 C.F.R. § 214.14(b)(2).

[11] 8 C.F.R. § 214.14(a)(7).

[12] Id.

[13] DHS Resource Guide.

[14] Id.

[15] 8 U.S.C. § 1184(p)(2). Certain immediate family members of U Visa recipients may also be eligible for a derivative U Visa. See 8 U.S.C. § 1101(a)(15)(U)(ii).

[16] 8 C.F.R. 214.14(d)(2).

[17] Sarah Bronstein, Changes to U Visa processing in Fiscal Year 2017, Catholic Legal Immigration Network, Inc. (CLINIC),  https://cliniclegal.org/resources/immigration-and-nationality-act-limited-number-u-visas-fiscal-year-2017 .

Renaming the Bridges of New York

By Bennett Liebman
Government Lawyer in Residence
Government Law Center
Albany Law School

New York State government has always had an obsession with the renaming of its major bridges and tunnels, especially naming them after deceased elected officials. We now have the Robert F. Kennedy Bridge (formerly the Triborough Bridge), the Ed Koch Queensboro Bridge, the Hugh L. Carey Tunnel (formerly the Brooklyn-Battery Tunnel), and the Franklin Delano Roosevelt Mid-Hudson Bridge.

Currently we have the saga of the Tappan Zee Bridge which is the bridge on the New York Thruway (the Governor Thomas E. Dewey Thruway) crossing the Hudson River between Tarrytown in Westchester County and Nyack in Rockland County.  The bridge opened in the mid 1950’s as the Tappan Zee Bridge. Governor Mario Cuomo in 1993 proposed a program bill to rename the bridge as the Governor Malcolm Wilson Tappan Zee Bridge, and the state legislature approved the program bill later that year (Ch. 530; L. 1993). Malcolm Wilson was a long time elected official from Westchester County, who served as Nelson Rockefeller’s Lieutenant Governor for more than three terms and for a year as New York’s fiftieth governor. In 1993, the legislature in the bridge-renaming legislation found “that a lasting tribute should be made to honor Governor Wilson’s untiring dedication and outstanding achievements on behalf of the state.”  Governor Mario Cuomo, in approving the legislation, noted that it had been “introduced at my request” and that the renaming “is a fitting tribute to the high standard of public service exemplified by Governor Wilson throughout his 36 consecutive years in public office.” Nonetheless, the state legislature at the close of the 2017 session renamed the Wilson Bridge as the Governor Mario M. Cuomo Bridge, based on the suggestion of Governor Andrew Cuomo.

But nothing in New York compares to the nine-decade saga involving the naming of the Verrazano-Narrows Bridge.  The Verrazano-Narrows Bridge which was completed in 1965 connects Brooklyn with Staten Island at the Narrows, which is the gateway from the Atlantic Ocean to New York harbor. When constructed, the bridge was the largest suspension bridge in the world.

Starting in the 1920’s, there was regular talk about building a bridge at the Narrows.  Throughout that time, the bridge was known as the Narrows Bridge. The talk finally became serious in 1954 as the Port Authority, the Triborough Bridge and Tunnel Authority, and New York City decided to move forward on the Narrows Bridge. In 1995, state legislation was passed authorizing construction of the $220 million “Narrows Bridge.” Robert Moses, who was the czar of metropolitan New York construction at the Triborough Authority, called it “the bridge of my dreams.”

Yet this was just the beginning of the legislative fights involving the bridge. The plan for the bridge involved the condemnation of numerous homes in Bay Ridge in Brooklyn. The Bay Ridge leaders—and Mario Cuomo was one of their attorneys—were able to pass bills in three consecutive years to change the route of the bridge to avoid the condemnations. The bills were vetoed by Governor Harriman in 1957 and 1958 and by Governor Rockefeller in 1959. Eventually eight hundred homes were condemned, and seven thousand people were forced to relocate.

Meanwhile, the Italian Historical Association of America, based in Brooklyn under the active leadership of its founder John LaCorte, began to argue that the Narrows Bridge should rightfully be named for the Florentine explorer Giovanni da Verrazano, who in 1524 was arguably the first white man to explore New York Harbor. Governor Harriman in 1958 (an election year) agreed and proposed the Verrazano Bridge.

In 1959, a reluctant Robert Moses, at the Triborough Authority, agreed to the Verrazano-Narrows Bridge name change. The possible use of the Verrazano name, however, prompted a negative reaction from Staten Island residents, and the Staten Island Chamber of Commerce proposed the “Staten Island Bridge.”  The Staten Islanders questioned the role of Verrazano, and wondered why there was no bridge named specifically for Staten Island.  (After all, there were the Brooklyn, Manhattan, Bronx Whitestone, and Queensboro Bridges.) At the 1959 groundbreaking for the bridge, the Staten Islanders hired a plane carrying the banner, “Name It The Staten Island Bridge” to fly over the ceremonies.

Governor Rockefeller agreed with the Verrazano name and not the Staten Island contingent. The legislature in 1960 formally amended the law to state that the bridge referred to as the Narrows shall be the “Verrazano-Narrows Bridge.” This statutory enactment served to defeat the Staten Islanders and made certain that Robert Moses could not go back on his word and rename it the Narrows Bridge.

This did not end the bridge-naming controversy. People began to question the spelling of Verrazano’s last name. Were there two “z’s” or one “z” in the explorer’s name? The statue of the explorer in Battery Park, a city ferry boat, and the Triborough Authority claimed that the historical evidence supported the two “z” spelling.  The Triborough Authority even erected many two “z” road signs in anticipation of the bridge’s construction.  LaCorte fired back at the Triborough Authority by saying that he had viewed the historical documents in Italy which showed the one “z” spelling to be the proper spelling.  Most importantly, LaCorte had the trump card. The state legislature had spelled the bridge with one “z,” and the one “z” spelling prevailed.

This did not completely stop the Staten Islanders. After the assassination of President John F. Kennedy in 1963, the Staten Island Chamber of Commerce called upon the legislature to name the bridge the “John F. Kennedy Memorial Bridge.” Legislation was introduced to change the name of the bridge in honor of President Kennedy, but it went nowhere. For the first 50 years after it opened, we had the Verrazano (one ”z”) Bridge.

Then came 2016.  A Brooklyn College student named Robert Nash started a petition to rename the bridge with the two “z” spelling.  The petition received significant publicity. Both houses in the New York State legislature introduced legislation to rename the bridge with the two ”z” spelling. The State Senate in 2017 passed the bill, but the Assembly did not act on it.

The one constant here is that these bridge renaming issues will always be with us in New York.  The supply of bridges that can be renamed and the supply of public figures for whom they can be named for is simply inexhaustible.