National Immigration Forum

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Immigration Policy Update for September 7, 2012

September 07, 2012 - Posted by Maurice Belanger

Injunction on Show-Me-Your-Papers Provision of S.B. 1070 Lifted by Court

On September 5, U.S. District Court Judge Susan Bolton decided not to maintain the injunction prohibiting the enforcement of Arizona S.B. 1070 section 2B, the “show-me-your-papers” provision that requires Arizona law enforcement officers to make a “reasonable attempt” to determine the immigration status of persons they stop, detain or arrest if they have a “reasonable suspicion” that the person is unlawfully present.

In June, the Supreme Court ruled that this provision should not be enjoined prior to the implementation of the law. The Supreme Court handed the case back down to the Ninth Circuit Court of Appeals, which remanded it to Judge Bolton, who issued the original injunction. Judge Bolton did not immediately lift the injunction, but instead heard arguments against section 2B based on the Constitution’s equal protection clause and the Fourth Amendment. Her most recent ruling concludes that, even on the new grounds not considered by the Supreme Court, she would not ignore the Supreme Court’s direction that it is pre-mature to enjoin the law before harm from the law’s implementation can be shown.

In a separate order, the Judge told the U.S. Department of Justice and Arizona that they have 10 days to work out language that will be used to lift the prior injunction, after which time she will lift the injunction.

In a separate issue brought by advocates last month, the Judge issued an injunction against enforcement of a provision of the Arizona law that would make it illegal to transport or harbor an undocumented immigrant. In her ruling, the Judge noted that the Eleventh Circuit Court of Appeals enjoined analogous provisions of the Alabama and Georgia laws (which the Forum reported on in our last policy update).

Advocates have promised to monitor the implementation of Section 2B of the Arizona law, and to take the state back to court if they find it is being implemented in a discriminatory manner.

States React to Deferred Action Policy

On August 30, the California legislature sent to the governor a bill that specifically authorizes the state of California to issue drivers licenses to persons who obtain relief from deportation through the Obama administration’s Deferred Action for Childhood Arrivals (DACA).

This bill puts California at the other end of the spectrum from Arizona, where Governor Jan Brewer (R) issued an executive order mandating state agencies to “conduct a full statutory, rule-making and policy analysis and … initiate operational, policy, rule and statutory changes necessary to prevent Deferred Action recipients from obtaining eligibility … for any … state identification, including a driver’s license….” The order also applied to “any taxpayer-funded public benefits.”

In the wake of Governor Brewer’s proclamation, other states followed suit. In Nebraska, Governor David Heineman (R) issued a statement saying that “[t]he State of Nebraska will continue its practice of not issuing driver’s licenses, welfare benefits or other public benefits to illegal immigrants….” Mississippi’s Governor Phil Bryant (R) also issued an order to state agencies banning them from providing benefits to DACA recipients. Texas Governor Rick Perry (R) issued a letter expressing strong disagreement with the deferred action policy, but in Texas persons who obtain work authorization may obtain a driver’s license good for the term of the work authorization.

Regarding driver’s licenses, each state has its own rules, but in many states, someone with work authorization from the federal government may obtain a driver’s license. (Read more on this blog post from the Immigration Policy Center.)

In reaction to California’s legislation, Republican Congressman Duncan Hunter of California is preparing legislation that would deny federal funding for the Community Oriented Policing Services Program (COPS), operated by the Department of Justice, to states that provide licenses to DACA recipients. If the bill is introduced in Congress, we will let you know.

Administration Announces DACA Recipients Not Eligible for Health Care Benefits

On August 30, the Department of Health and Human Services (HHS) issue an amendment to an interim final rule governing eligibility for the Preexisting Condition Insurance Plan (PCIP) to stipulate that recipients of Deferred Action for Childhood Arrivals will not be eligible to enroll in the plan. PCIP is a provision of the Patient Protection and Affordable Care Act that establishes a high-risk health insurance pool program so that uninsured Americans with pre-existing conditions might gain access to health insurance. In the amended interim rule, HHS stated that it is changing its definition of “lawfully present” for purposes of access to certain health care benefits to exclude DACA recipients. The rule amendment states that the new definition of “lawfully present” (excluding DACA recipients) will also be incorporated in the rules governing the Affordable Insurance Exchanges, due to be established in 2014. This means that DACA recipients will be excluded from purchasing insurance on the insurance exchanges, and from potential eligibility for health insurance subsidies from the government.

Separately, the Center for Medicaid and CHIP Services sent a letter to State Medicaid Directors informing them that DACA recipients are not eligible for Medicaid and the Child Health Insurance Program (CHIP) under the CHIPRA state option (in which states have the option to provide Medicaid and CHIP eligibility to children and/or pregnant women who are “lawfully residing” in the United States and otherwise eligible for Medicaid or CHIP.

To read an article on the government’s action, click here.

Immigrant Integration Conference Begins September 22

The 5th Annual National Immigrant Integration Conference begins on September 22 in Baltimore, Maryland. In its five years of existence, this conference has become a valuable resource for immigration service providers, policy experts, advocates, and government officials who focus on the various aspects of immigrant integration. Individuals from across the country come together at this conference to learn about the best practices in teaching English to speakers of other languages, reaching out to immigrants eligible to naturalize, dealing with newcomer/established resident tensions, and many other topics.

This year’s conference will run on seven tracks, summarized briefly here:

  • Educating immigrants, spanning the full education continuum from pre-kindergarten to adult education, addressing critical issues from the perspectives of practitioners, students, advocates and researchers.

  • Economic Success for Immigrant Youth and Adults, which will explore a range of approaches being taken to unleash the energy and economic potential of immigrants and their children.

  • African American and Pan-Immigrant Communities, designed to equip participants with the tools necessary to create thriving communities and organizations among African Americans and diverse immigrant groups.

  • Active Citizenship, designed to provide legal and community service providers, researchers and academics a space to share legal best practices, resources, tips for citizenship advocacy and new technologies.

  • Receiving Communities, will explore approaches for engaging everyday Americans as an important element of ensuring success in immigrant and refugee integration programming.

  • We Are America, will explore issues of identity, culture, national pride and generational conflict through the perspective of immigrants themselves in an effort to share how they may be used as assets for integration.

  • Promoting Integration: The Refugee Perspective, will focus on the intersection between refugee integration compared with the experiences of other immigrant populations and how advocates across the immigration spectrum can collaborate more effectively.

More details on the agenda, including the plenary sessions and the distinguished speakers who will address the conference, are available on the Web site of the conference. If your work focuses on any aspect of immigrant integration, this conference is not to be missed. You can register here.

Democratic Platform Starkly Contrasts with Republican on Immigration

Earlier this week at the Democratic Party convention in Charlotte, North Carolina, Democrats released their party platform. The immigration planks sharply contrast with their Republican counterparts. Among other things, the platform includes support for comprehensive immigration reform “that brings undocumented immigrants out of the shadows” and that “creates a system for allocating visas that meets our economic needs, keeps families together, and enforces the law.” It also praised the president for “temporary relief for youth who came to the United States as children, through no fault of their own, grew up as Americans and are poised to make a real contribution to our country.”

The DREAMers referenced in the above quote received more than passing mention in the party platform. Benita Veliz, a DREAMer from Texas, was given time on the convention floor to address the delegates and tell her story on September 5 (see video). On the concluding night of the convention, Senator Richard Durbin introduced President Obama just before the president's acceptance speech. He is the Senate sponsor of the DREAM act and made more than a mention of it during his time on the convention floor. President Obama also mentioned the DREAMers in his acceptance speech.

You can find the entire platform here.

Russell Pearce Loses Primary

As you may recall, Russell Pearce, the father of Arizona’s anti-immigrant S.B. 1070 and former Arizona Senate President, was booted out of office last year in a historic (for Arizona) recall election. (We reported on that event in this Policy Update.) Pearce, a Tea Party favorite, lost no time in launching a comeback attempt. On August 28, he faced his first test in his effort to regain a seat in the Arizona Senate. It was a test he didn’t pass. Pearce lost his primary to Bob Worsley, a moderate Republican. The margin was 56 percent to 44 percent. Pearce gained a national reputation for his anti-immigrant legislation and became a darling of the anti-immigrant movement. Unfortunately for him, the people of Mesa’s Legislative District 25 didn’t want him to represent America’s immigration hardliners. They wanted someone to represent them. According to the Arizona Republic, Worsley went in to the primary with the unanimous endorsement of the Mesa City Council, and had the backing of the political establishment in the majority Republican district.

This may be another sign of change coming about in post-S.B. 1070 Arizona. Arizonans are tiring of the rhetoric that has made their state seem like a “mecca for prejudice and bigotry.” On the other hand, as in his recall election, Pearce’s primary campaign was plagued with gaffes, which undoubtedly magnified his personal unpopularity. (You can read about some of those gaffes here.)

We look forward to other tests of the changing tide in Arizona.

Rep. Smith Complains ICE gets More Credit than Due on Removals

On August 24, Rep. Lamar Smith released a statement alleging that the administration was cooking the books on its removal statistics. He alleges that removals resulting from the Alien Transfer Exit Program (ATEP) should be counted as returns, and not removals. ATEP is jointly run by the Border Patrol and Immigration and Customs Enforcement (ICE). Through this program, persons who are apprehended crossing the border illegally are transported to a different port of entry and released back into Mexico. The point is to disrupt smuggling rings; the persons removed cannot (without a lot of effort) go back to the same smugglers to bring them back into the U.S.

Smith’s complaint, essentially, is that a different sub-agency of the Department of Homeland Security should be getting credit for those particular removals. The overall numbers, however, don’t change. So, what’s the point? Rep. Smith and other immigration hardliners are fond of saying that this administration does not care about immigration enforcement. The problem they face is the data, which shows that this administration has presided over record deportation and border enforcement levels. By questioning ICE’s numbers, perhaps Rep. Smith is attempting to create some confusion as to whether the enforcement statistics are as robust as they seem. It’s not clear, however, that anyone is paying attention to this very esoteric argument over which sub-agency gets credit for sending people across the border.

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