County Interactions with Immigrants Prof. Andy Ayers Director of the Government Law Center Albany Law School

OUTLINE Immigration statuses 2. “Sanctuary” decisions 3. Noncitizens’ eligibility for licenses and benefits 4. Green Light Law

1. KINDS OF NONCITIZEN STATUS 1. Lawful permanent resident (green card) 2. “Non-immigrant” (temporary / conditional) 3. Humanitarian (asylum etc) 4. “Undocumented”

Variations in undocumented status Means of entry Visa overstay Entry without inspection Lost legal status Pending application for status? No application pending Application pending Adjudicated 3. Evading detection? Deferred action Checking in At large, but authorities not seeking Authorities seeking Detained

2. “SANCTUARY” DECISIONS Use resources to participate in imm enforcement? Feds can’t compel under 10th Amendment Share information with imm authorities? Can’t ban sharing with DHS “information regarding immigration status” Can choose not to collect info 3. Detain noncitizens at federal request? Detainers are requests Sheriffs lack statutory authorization to comply May violate 4th Amend 4. Allow access to locally-controlled sites? State courts deny without warrant; issue not yet litigated

3. ELIGIBILITY FOR LICENSES AND BENEFITS A. Constitutional Rule States/localities can’t deny benefits based on immigration status Exceptions to the constitutional rule: States can deny benefits to undocumented people States can deny employment in certain government positions States can deny benefits where federal law requires it

3. ELIGIBILITY FOR LICENSES AND BENEFITS B. Federal statutes States must deny certain benefits to specific groups: Undocumented people Non-immigrants Certain humanitarian statuses The benefits that cannot go to these groups include: Health, housing, welfare, retirement, disability, unemployment professional licenses and commercial licenses Driver’s licenses not mentioned Exception: If the state passes a law specifically granting these benefits

4. THE GREEN LIGHT LAW A. Creates a license that can’t be used for federal purposes • Acceptable ID includes unexpired foreign passports, consular ID, foreign driver’s license, other forms TBD. • Also required: SocSec# or “an affidavit signed by such applicant that they have not been issued a social security number.”

4. THE GREEN LIGHT LAW B. Who will carry these licenses? People who are: Undocumented Lawfully present but not eligible for a SocSec# (tourists, many students, some spouses of certain imms) Eligible for SocSec# but don’t work and don’t get SocSec# Not eligible for a SocSec# when they got their NY license, but have since become eligible

4. THE GREEN LIGHT LAW C. Info-sharing 1. Sharing info with the public: 2. Sharing info with imm authorities: Without a warrant or court order, DMV can’t disclose to anyone: Docs any driver submitted as ID; or Info on whether a driver qualifies for federal ID. Anyone who receives records must certify they won’t share them with imm authorities. Without warrant or court order, DMV can’t disclose to imm authorities: any driver’s records. If records are disclosed, DMV must notify the driver.

4. THE GREEN LIGHT LAW C. Info-sharing 3. Retaining records DMV/clerks can’t retain ID documents used to get not-federal licenses

4. THE GREEN LIGHT LAW D. Legal Challenges Harboring Preemption Plaintiffs: Clerks of Erie and Rensselaer Counties (Kearns and Merola), and Monroe County and its supervisor (Cheryl Dinolfo) Harboring Preemption Equal protection

4. THE GREEN-LIGHT LAW D. Legal Challenges Elements include: Harboring violation? Plaintiffs’ claims Elements include: Knowledge of undocumented status Intent to conceal Action taken that “substantially facilitates” remaining in the US without detection Clerks required to shield evidence of illegal imm Issuing licenses will help imms evade detection Notifying drivers is helping evade detection

4. THE GREEN LIGHT LAW D. Legal Challenges 2. Preemption: info-sharing By 8 USC 1373 and 1644 States/localities may not ban sharing “information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” Plaintiffs say: Green Light ban on sharing info about drivers is tantamount to a ban on sharing “info regarding imm status”

4. THE GREEN LIGHT LAW D. Legal Challenges 2. Preemption: employment By 8 USC 1324a Crime to hire undocumented workers Plaintiffs say: One purpose of Green-Light is to facilitate work, which is an obstacle to Congress’s policy.

4. THE GREEN LIGHT LAW D. Legal Challenges 2. Preemption Is there standing?

4. THE GREEN LIGHT LAW D. Legal Challenges Green Light Law: 3. Equal Protection Plaintiffs say: Noncitizens’ info is protected from disclosure in a way that citizens’ info isn’t Green Light Law: No disclosure to public of any driver’s records, or any ID docs to DHS No disclosure to public of whether any driver has not-federal license No retention of ID docs for Green Light applicants

For more information Government Law Center immigration resources: www.albanylaw.edu/glc/immigration Andy Ayers: aayer@albanylaw.edu