Wednesday, December 12, 2012

Immigration News from the Big Sky State: Montana Immigration Enforcement Law Challenged


Here is some interesting immigration news from the U.S./Canadian border.

Montana  is not generally thought of as ground zero in the modern immigration debate, with just 2 percent of the population foreign-born.  But the Montana voters decided to join the fun with a new immigration enforcement law.

On December 7, 2012, the Montana Immigrant Justice Alliance (MIJA) filed a lawsuit in Montana’s First Judicial District Court to challenge and enjoin implementation of LR-121, along with co-Plaintiffs MEA-MFT and Alisha Blair (a U.S. citizen who would likely be wrongly denied services under the law).  The complaint sets forth claims based on the (1) right to privacy, (2) due process, (3) equal protection, and (4) preemption by federal law. Here is a description of the suit borrowed from the MIJA press release (linked above).

MIJA asserts that it is challenging the constitutionality of LR-121 because it violates the rights of lawful Montana residents, not just undocumented aliens. We are seeking a temporary restraining order and preliminary injunction to prevent the law from being put into effect while this litigation is pending. Unless it is enjoined, the law is scheduled to be implemented on January 1, 2012.

 LR-121 was placed on the ballot by the 2011 Montana Legislature, and voters approved the referendum on November 6, 2012. However, the ballot language did not adequately express the new burdens that all Montanans, including U.S. citizens, will have to face before accessing state services. LR-121 imposes a sweeping new regulatory scheme that will affect the constitutional rights of almost all Montanans who apply for or use state services. The law now requires all Montanans to present documents to prove their citizenship or immigration status before accessing state services. The burden is now on the average Montanan to prove that they are here legally, or else they will be denied state services.

The new law also subjects applicants to being screened through a federal database to confirm immigration status, and gives state agencies unrestricted authority to report applicants to the federal government if information cannot be confirmed.

How Will This Law Impact the Average Montanan?

For the first time in Montana’s history, the state will be requiring citizens to start carrying certain papers and presenting them before they can access basic state services. To be clear, the law imposes a mandate that all applicants for services to be screened for citizenship or legal immigration status, which includes every Montana resident. This imposes a restriction on the fundamental right to pursue life’s basic necessities as provided in Article II, Section 3 of the Montana Constitution. The services that will now be conditioned on proof of citizenship include employment with a state agency, attendance a public university, ability to obtain student financial assistance, ability to obtain a license or permit to practice a trade or profession, eligibility for unemployment insurance, services for victims of crime, vocational rehabilitation, and certain services for the physically disabled.

Not All Montanans Have Proof of Their Citizenship

Not all Montanans have readily-available proof of their U.S. citizenship — in fact, studies show that nationally, about 7% of the population don’t have these documents. There are typically only two ways to prove you are a citizen: by providing a birth certificate or a U.S. passport. For many reasons, there are Montanans who don’t have copies of their birth certificates, and who have never gotten passports. Under this law, Montanans are losing privacy protections — state agencies are going to ask for your identity documents for basic services and deny you services if you can’t provide them. In addition, due to the complexities of federal immigration law and the facts and circumstances of an individual’s life, a person can be a lawful U.S. citizen, and a resident of Montana, but lack documentary proof of their citizenship.

Plaintiff Alisha Blair is a U.S. citizen who may be wrongly denied services under this law. Ms. Blair is a 22 year-old who grew up in Sunburst, Montana who automatically acquired U.S. citizenship at birth. She was born in Canada and has been residing in Montana since she was one year old. Her U.S. citizenship was transmitted to her at birth through her U.S. citizen father by operation of federal law, but she has never had any documents to prove her citizenship. Ther complaint includes an affidavit from Ms. Blair and another individual with a similar situation. The plight of a 65-year-old teacher from Fairfield, Montana provides another example of the type of person who will be caught in this system.

There are many more lawful Montana citizens like these individuals who will be wrongly denied services under this law. By treating lawful Montana residents differently, without any legitimate reason, the law violates the equal protection clause of the Montana Constitution.

Ineffective Screening Through Federal Databases

If you don’t have documents to prove your citizenship of lawful resident status, the referendum suggests that state agencies can screen you through the Systematic Alien Verification for Entitlements (“SAVE”) system, a federal database that charges between $.50 and $2.00 for each search in the system. However, there is a significant limitation with this system: The SAVE program does not contain any information on native-born U.S. citizens, or most individuals who entered the country without inspection. SAVE can only verify information contained in immigrations records. Therefore, it only includes information on individuals who have applied for or received certain immigration benefits through interaction with relevant agencies within the U.S. government. There is no federal database that is available to the State of Montana for benefit eligibility determinations that would provide a comprehensive listing of all U.S. citizens. This means that in some ways, native-born U.S. citizens may have a harder time proving their status than a lawfully residing immigrant, because if you don’t have the documents in hand, there is no alternate way to verify your U.S. citizenship. Before implementing this law, state agencies must be called upon to explain how they can implement this law without violating the rights of U.S. citizens.

Violations of the Right to Privacy and Due Process

Under LR-121, lawful Montana citizens who don’t have proof of citizenship may be wrongly denied services that they are entitled to as taxpayers. To make matters worse, there are no due process protections outlined in the law, so there is no clear way to challenge a state agency’s decision if you are wrongly denied services. There are also no restrictions in the law to protect privacy interests and limit dissemination of the information that is collected. When lawfully present U.S. citizens like Plaintiff Alisha Blair apply for state services, there is nothing prohibiting the State from classifying them as “illegal aliens” and then calling upon the Department of Homeland Security to investigate them. Indeed, the Act provides unrestricted discretion to state agencies to classify any applicant who cannot prove to the State’s satisfaction that he or she is a U.S. citizen as an “illegal alien” and report the individual to DHS. Montanans value the privacy protections in our Constitution — protections that are greater than provided under federal law and most other states. That’s why we’ve fought back against attempts to create a national identification card, and led the nation in rejecting the federal REAL ID laws. However, based on the misguided goal of targeting undocumented immigrants (even anti-immigrant groups estimate there are only 5,000 in our state) this referendum has subjected the State of Montana and its residents to far more invasive requirements than REAL ID ever contemplated.

Preemption by Federal Law

Not only does this burdensome regulatory scheme impact our constitutional rights, but it also violates federal law. Under the Supremacy Clause of the U.S. Constitution, the federal government alone has the power to enact and to enforce regulations concerning which non-citizens to admit, exclude, remove or allow to remain in the United States. The federal government has exclusive authority to classify non-citizens within this framework of laws regulating immigration. The states may not create their own distinct classifications of immigrants that differ from the classifications created by federal law. LR-121 is preempted by federal law because it utilizes its own classification of non-citizens that conflicts with federal law. Section 6(b) of the Act defines an “illegal alien” as “an individual who is not a citizen of the United States and who has unlawfully entered or remains unlawfully in the United States.” The term “illegal alien” is not defined in the Immigration and Nationality Act (“INA”) or other federal laws regulating immigration, and the definition in this law conflicts with federal laws because there are numerous categories of noncitizens who illegally entered the United States, but do not illegally remain in the United States. This is not a mere technicality, as this definition alone makes the law unconstitutional under the Supremacy Clause of the U.S. Constitution. The State of Alabama recently passed its own state law regulating immigration, and one provision was recently enjoined for the same reason, where it tried to create a separate classification of non-citizens who are entitled to different rights and privileges.

Conservatives and Progressives Alike Should Be Concerned About This Law

Whether you are a conservative or a progressive — Democrat or a Republican — LR-121 is bad policy for the State of Montana. Montana is one of the states with the least numbers of immigrants in the whole country.


The libertarian-style challenge to the Montana law differs in important respects from the various challenges to the Alabama, Arizona, Georgeia, and South Carolina immigration enforcement laws.  It apparently is an attempt to build political support among relatively conservative people for the legal challenges.  And it just may work!

For news stories about the legal challenge to the Montana law, click here and here.



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