Another one bites the dust. Kobach’s ideas are dropping like flies.
Another one bites the dust. Kobach’s ideas are dropping like flies.
Stay out of the schools
Immigration is in the News again as the Supreme Court of the United States handed down its decision last week on Arizona’s controversial state-based immigration law, SB 1070. Since Arizona’s law was passed in 2010, many other states have passed similar, and in some cases even harsher state-based laws. Many others have tried and failed. All of the laws that have passed have been almost immediately enjoined by Federal District Courts from taking effect starting the laborious process of litigating whether these laws are pre-empted by Federal Powers and are, thus unconstitutional. The Decision in Arizona vs. US, 567 US_____(2012) will give some much needed guidance to those state lawmakers considering this type of legislation.
These laws are the brainchild of local boy and supposed Kansas Secretary of State, Kris Kobach, who has developed his own ideas of how to deal with our immigration problems. Rather than actually fixing the problem or pushing Congress to do its job, he has developed a theory that many have blindly embraced, the policy of “enforcement through attrition.” The Kobachian policy of “enforcement through attrition,” or as I like to call it the “treat-them-like-crap-and-maybe-they-will-just-go-away” theory of immigration reform involves states making laws that make life increasingly unequal, unfair, and unpleasant for immigrants, mostly for illegal immigrants, but if legal ones are effected, well that is just collateral damage. Everyone’s talking about it as if it is the best solution ever to solving out immigration problem. Kris Kobach loves to make speeches all over the place describing the concrete and easy-to-spot characteristics of those who are reasonably suspicious of being undocumented, immutable, non-racially charged characteristics like being unable to speak English, lacking ID, riding in an old car or a car that is “riding heavy,” cars with lots of passengers or are traveling on known trafficking corridors (the highway) and my personal favorite, people who are “dusty” as if just finishing a long trip through the desert. He is getting paid millions to write laws for states each more inhumane and mean than the last.
Every state that has passed one of these laws has gotten sued and spent millions (going in many cases right into Mr. Kobach’s designer pockets) to defend the laws. Similarly, many municipalities have bought Mr. Kobach’s Constitutionally dubious immigration-fix-all snake oil with similar results. (Farmers Branch, TX, Hazelton, PA,; Fremont, NE) Millions spent defending these bills, with few, if any positive Constitutional seal of approvals from the courts. They have all lost millions in taxes, revenue and production as immigrants of all kinds fled the increasingly unfriendly states for less hostile pastures. Many other states have tried passing the same measures and have failed, including both Missouri and Kansas.
On Monday the Supremes, or SCOTUS, issued its opinion. While both sides immediately claimed victory, here is what they actually said. The Arizona law, SB1070, was enacted in 2010 and immediately enjoined from being enforced. The Justice department filed a lawsuit enjoining the enforcement of the law on the basis that it was preempted by Federal Law, specifically by the Constitution in Article I section 8.4 that states that Congress shall have the power to establish a uniform rule of naturalization. The lawsuit specifically challenged four provisions of the law: Section 3 (Ariz. Rev. Stat. Ann 13—1509, which makes failure to comply with federal alien registration requirements a state misdemeanor; Section 5 (C)(13-2928 (c)) that makes it a state misdemeanor for an alien unauthorized to work to seek or engage in work within Arizona; Section 6 (13-3883(A)(5)) that gives specific authority to or officers to arrest without a warrant a person “the officer has probable cause to believe…has committed any public offense that makes the person removable from the United States; and Section 2(B) (11-1051(B)) that mandates that officers who conduct a stop, detention or arrest must make efforts to verify a person’s immigration status if they have reasonable suspicion to believe that they are undocumented.
The Court held that section 3 (state crime for failure to register or carry immigration documents) was unconstitutional because federal law preempts it. The Court reasoned that the Federal Government has “occupied the field of alien registration” (Decision page 9). Such “field preemption reflects a congressional decision to foreclose any state regulation in the area, even if it is parallel to federal standards.” (Page 10) The Court further shot down Arizona’s argument that it can survive preemption because the provision has the same aim as federal law. The Court said that this argument “ignores the basic premise of field preemption” and was “unpersuasive on its own terms.” They reasoned that allowing states to make their own laws on alien registration and enforce them even where Federal officials have decided that enforcement in a particular situation frustrated federal policies. Further the Court pointed out that the statute was not a mere mirror of federal law and substantive standards as Arizona claimed, and, in fact, treated potential violators in a manner different and harsher than someone prosecuted in federal court. While the federal sentencing structure allows for probation, fines or imprisonment, the state structure rules out entirely the possibility of probation as well as the possibility of a later pardon. Because of the comprehensive and exhaustive statutory scheme that occupies the entirety of the field, the Court concludes that congress intended to preclude the states from any part of these regulations.
The Court also held that section 5 (crime for unauthorized aliens to work or even seek employment in the state) was unconstitutional because of preemption. The Court recognized that “(w)hen there was no comprehensive federal program regulating the employment of unauthorized aliens, this Court found that a State had authority to pass its own law.” (Page 12). They cited a care from 1971 where a California law imposed civil penalties for employing unauthorized aliens was upheld against preemption because at that time there existed no comprehensive framework dealing with the issue. (DeCanas v. Bica, 424 US 351 (1976) However, in 1986 Congress enacted the Immigration Reform and Control Act (IRCA) which is a comprehensive framework “combating the employment of illegal aliens.” (Page 13). This law proscribes a number of controls and both civil and criminal penalties on the employer for knowingly hiring, employing or recruiting unauthorized workers. The Court further noted that IRCA specifically does not impose criminal penalties on the employee and further makes clear that
“any information employees submit to indicate their work status ‘may not be used’ for purposes other than prosecution under specific federal criminal statutes for fraud, perjury and related conduct (See 8 USC §§ 1324a(b)(5), (d)(2)(F)-(G).” (Page 13). The Court further noted that whether to impose criminal sanctions on the employee was debated and discarded during the writing of IRCA. They stated that “the ordinary principle of preemption include the well-settled proposition that a state law is preempted where it ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” (Pages 14 & 15) Because Congress had the opportunity to include criminal sanctions on the employee and did not, the Court reasoned that it follows that any state law providing for the contrary is an obstacle to that federal regulation.
Section 6 (warrantless arrest of persons suspected to have committed an offense making them removable) was also found to be unconstitutional. The Court starts with the recognition that, as a general rule it is not a crime for a removable alien to remain in the United States (INS v. Lopez-Mendoza, 468 US 1032, 1038(1984)). (Page 15-16). The Court also discusses the exhaustive and complicated process of initiating removal proceedings, how that notice may be served, when a federal warrant may be issued for the arrest of possibly removable aliens, which aliens are allowed to remain free on bond and those mandated to remain in custody. The Court decided that if this state law were allowed to stand, a state officer could arrest anyone they wanted without input from the federal government, their issuance of a warrant the federal determination that the alien is likely to escape or whether the government felt that arrest was warranted and without regard to the discretion the federal government has to set it’s own enforcement policies and agenda. The Court explicitly cites as an example of the government’s authority to use such discretion, the Morton Memo of June 2011 directing ICE and Federal Trial Attorneys to exercise prosecutorial discretion in cases with certain factors. The Court reasoned that this kind of statute would allow states to set their own immigration policies and priorities that directly conflict with the Federal Government’s rights and authority to act in this arena. The Court scoffed at Arizona’s argument that this section is authorized by a “federal statute permitting state officers to cooperate” in immigration enforcement. The Court states “(t)here may be some ambiguity as to what constitutes cooperation under federal law; but no coherent understanding of the term would incorporate the unilateral decision of state officers to arrest an alien for being removable absent any request, approval or other instruction from the Federal Government.”(Page 18)
The final section, 2(b)(the ‘reasonable suspicion of being illegal” provision, and probably the most controversial provision) was challenged on 2 grounds, its mandatory nature and its possibility for prolonged detention while immigration status is being verified with ICE. The Court, using the principle that if a State statute can possibly be construed in a way to avoid unconstitutional questions it should be construed that way until it is shown to actually conflict with federal law, found that the mandate to investigate immigration status after a lawful stop, and to always verify the immigration status of someone before they are released from custody is not per se unconstitutional. Because the first clause of section 2(B) states that officers must make reasonable attempts to verify the immigration status during a lawful stop, and using the general rule that “a seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission” (see page 22 citing Illinois v. Caballes, 543 US 405, 407 (2005)) and detaining someone solely to verify their immigration status would raise constitutional concerns, (see page 22 citing Arizona v. Johnson, 555 US 323,333 (2009), it is possible that a court could decide that unless a person continues to be suspected of a crime for which he can be detained, officers cannot prolong a stop for the immigration inquiry. The Court also said that according to Arizona’s brief, the verification would not even have to be completed during the actual stop. Further, because it is possible that a state court would decide that the second sentence of this section that, all person who have been arrested shall have their immigration status verified, no matter the circumstances, it is still not clear that this requirement would require a prolonged detention that would run afoul of the 4th amendment. Because of these ambiguities the Court could find nothing on the face of the statute that is contrary to federal law.
However, and this is a big however, that the Kobachian champions are failing to mention, the Court specifically decided this clause this way because “there is a basic uncertainty about what the law means and how it will be enforced” (page 24) because the challenge was brought before it ever took effect. Without a provision in federal law that occupies the field, automatically preempting the state law or a provision clearly contradicting the proposed state law, the Court found nothing in the section that made it automatically preempted by Federal law, even the argument that it would allow states to detain people who were not enforcement priorities. The Court, though clearly decided this with a caveat, “This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.” In other words, enact this with care. They did not give this provision a SCOTUS Constitutional seal of approval and specifically left this provision open to further litigation both from individuals and how it was applied to that person as well as a general preemption challenge but the Federal Government after the law is implemented, if it is enforced in such a way that makes it preempted by some section of federal immigration or civil rights law. Further they specifically did not decide if further detention beyond what was necessary to conduct the initial stop would be permissible if the officer came to suspect the person was undocumented during the course of the initial stop.
Honestly, this provision is detestable because of people such as Maricopa County Sheriff Joe Arpio and how they will undoubtedly apply it as well as what it represents: explicit and institutional justification of authorization of a hateful and wrongly reasoned policy of “attrition through enforcement,” in fact, the Arizona’s law says in its provisions are intended to establish this as a state policy. (See opinion page 1). I believe that the Majority recognized this and while they could not find this section unconstitutional on its face because of the supposed safe guards written into the statute, their specific statement that they were not deciding the issue of whether suspected unlawful presence would justify further detention and that the timing of the challenge gave them no way to assess how it would be implemented and that their decision this week specifically did not preclude both individual and governmental challenges indicate a deep concern for how this provision will be applied in practice.
This is decision has several very important lessons. First, Mr. Kobach is not the infallible constitutional genius he has been claiming when he appears in the state legislatures promising these laws are constitutional and will be upheld. The fact that most of his assertions on the constitutionality of his state and local laws have been blocked and been found unconstitutional by federal district and appellate courts all over the country seem not to have matter to his followers up to now, but maybe this SCOTUS bitch slap will wake up state legislatures all over the country to stop buying what he is selling. It is long on promises and short on delivery and leaves those state and local coffers significantly emptier and his pockets significantly fatter than when he started.
The second important lesson is that even though the SCOTUS did not strike the “reasonable suspicion” provision on its face, it did not give the green light for wholesale copying and pasting of this provision either. It expressed serious concerns as to how this law is going to shake out in practice and expressly invited further challenges to the application of this law both as to whether it is preempted in its application and to its constitutionality as it is applied to individuals. In other words, the litigation is not over. Any state legislators who use this provision verbatim are not doing so with a fresh stamp of unequivocal constitutional from the Bench. And those states that enact similar laws will not be protected from litigation, and the associated cost, by this opinion, a concern for more and more states that face deeper budget crises and growing debt.
States will still have to consider whether they should enact a “reasonable suspicion” statute like Arizona, even if it is not unconstitutional on its face. Aside from the strain on local resources mandating a provision like this will cause, the potential lawsuits and millions of taxpayer dollars that will be spent litigating individual and governmental challenges, the provision is hateful and, simply just make the state look bad. It kills me that so many people have drunk Kobach’s Poison Kool-aid on this issue. The whole concept of “attrition by enforcement” is based on a serious fallacy. Kobach is assuming that it is possible to create an environment through legislation that is bad enough to send the majority of the undocumented folks back to their countries. He is assuming that these restrictions, these scare tactics, these roadblocks to getting your water turned on or registering your car or even registering your kids in school is going to be enough to send them packing up and sneaking back. He assumes that a heightened risk that a cop will detain you when he finds you have no driver’s license or the difficulty one might have in renting an apartment is going to send them away. He assumes that creating a legal second class status or a pervasive “you are less than” attitude toward all immigrants are going to make them huff in fury and say in righteous indignation “we will not be treated in such a way,” close their businesses, pack up their kids and leave a place they have lived for years. He is assuming that because he is thinking like an upper-middle class, non-ethnic person. And maybe he would be exactly right, if our undocumented population consisted of illegal Canadians, or French, or Swedes. They would certainly not stand for laws making it legal to treat them badly and probably would pack up and return to there countries that are almost exactly like ours.
What he has failed to understand, however, is you do not pack up your entire family, leave your country, your home, your culture and history, and travel to our southern border where you pay all the money you and your entire family have to a coyote, who is equally as likely to kill you or rape your daughter or simply leave you in the desert as he is to actually deliver you to the other side, to smuggle you in to the United States in a shipping container, or in a hollowed out compartment in a truck or simply walking for days in the desert, and arrive in the US where you take dirty, difficult crap jobs and work 10 hours a day 6 ½ days a week and sleep on floors in rented rooms or in trailers or in cars and live in constant fear of being discovered because “home” is a great place.
To the vast majority of undocumented people “home” is in a dirt hut with no running water or doors or windows or school or doctor, or where your kids will grow up uneducated and your are barely able to feed yourself or your family; or a place where warring drug cartels forcibly recruit people to work for them and cut the heads off of people who refuse with machetes; or a city so over crowded and teeming with gangs that it is really MS13 that runs the city not the police or government; or a place where warring tribes like to go into villages and kill or maim the adults and kidnap and brain wash the kids into being soldiers by beating them and giving them drugs, and doing unspeakable things to them; or where oil companies hire mercenaries to kill and terrorize people who object to their pollution and corruption of the land; or where refusal to work in the diamond mines means your hand gets wacked off with a machete; or where your teenage daughter will be subject to female gentile mutilation; or you will be subjected to forced family planning; or you will be stoned in public for showing your ankle; or there are no jobs and no food and your living quarters are something out of Bleak House; or where being gay is punishable by death; or even a place you simply have no memory of and have not been to since you were a small child or where …I could go on and on.
The depth of cruelty and depravity that we humans are capable of inflicting on other human beings is staggering and astounding. And no amount of legislated hatred is going to make conditions here bad enough for anyone to return to that. There is a reason we do not have a problem with hordes of undocumented western Europeans. It will make things uncomfortable and difficult for a while but people will adapt. They will adapt because they cannot go back to the country of their birth and they will adapt because no matter how much Kobach may not like it, the United States is their home. It will not send them home because whatever is legislated, unless Kobach starts proposing cutting off heads and hands or forcing children to be drugged out soldiers, it is still better than where they came from otherwise they would not have risked what they have to have done it. They came here not to break laws, or to get a free ride or to steal jobs. They came here because their children were starving, or sick, or in danger or not getting an education. They came here because America is the place where anyone can become something great with hard work. Period. It may sound hippy and liberal and bleeding heart, but it is the truth. As someone who has spent her entire adult life working with “those people” I can tell you many of them embody the American dream and spirit far more than most Americans.
The Supreme Court’s decision in Arizona v. United States, hopefully, will begin to make it clear that state based cruelty and hate will only make the problem worse. This is Congress’ job and the fact is that, like so many things, they have epically failed in this arena. Hopefully this decision will show people that this issue is important enough that we need to start electing people who are politically brave enough to come to the table and compromise and try to fix this problem. It is not the job of employers, or landlords, or local police or state legislatures, or governors, or Kris Kobach. It is going to take listening and compromising and working together. It is going to take ceasing to act like stubborn children who refuse to do anything unless they get all of their own way. Maybe we ought to send a troop of kindergarten teachers into congress for a lesson on sharing and taking turns. What I hope this decision does is push voters to elect people who are willing to fix the system and address some of the real problems and push Congress to see that they cannot pawn off their responsibilities anymore on the states and to show the states that, as frustrated as they are about this situation, rather than wasting time and money on hateful ideas from a dubious constitutional “expert” who is wrong the majority of the time, push their counterparts in Washington to act. In any case, the Arizona decision was a game changer. It, in dicta, approved of the concept of prosecutorial discretion and the broad executive power to make policy and enforcement decisions and priorities in an administration and it severely curtailed the future potency of state legislation. While I wish the “reasonable suspicion” provision was found to be out right unconstitutional so there would be no need to discuss this further with the states, I cannot say I disagree with their reasoning and decision to a great degree, and I am placated by the fact that I am sure there will be more lawsuits to come, further providing a disincentive for states to enact these laws and, hopefully pushing congress to get off their collective backsides and do something.
Excellent article because it clearly explains what the legal issues are surrounding the Arizona Law SB1070 and the similar laws that have sprung up all over the country. Below is a link to a pdf that briefs the issues.
There are many similar instances of Mr. Kobach insisting that “Reasonable Suspicion” is a viable legal standard that will not encourage racial profiling. Very recently, February 16 in fact, he stated that reasonable suspicion can include a lot of things.
“Kobach said that could include someone acting evasive when a police officer asks for identification, if someone is driving on a known smuggling corridor, or even evidence of dust and sand that could come from a long journey across the desert.”
REALLY??? Driving on a known smuggling Corridor (i.e., I-70 or I-35) or evidence of dust on their clothing that could have come from a long journey across the desert???????? I cannot believe how stupid this argument is. Dust and sand are also evidence of working in construction, on a farm, with sheetrock, on a roof, in a dirty basement…but is very unlikely that it is because the person walked across the desert to get to the US and then never bothered to shower before arriving to Kansas. As if people just start walking in Cuidad Juarez and don’t stop until they reach their destination (Arizona or Kansas City or Minnesota apparently Kobach thinks that there would be opportunity to wash the dust off of themselves prior to their encounter with the police.)
Other evidence of reasonable suspicion I have heard is people acting evasive, not speaking English, or speaking broken English, driving in a crowded car or a car that is riding heavy, or if the car is old or looks like it has been on a long journey…wow.
How can anyone say with a straight face that this is not racial profiling. This is racist and a thinly veiled attempt to target poor, brown people. Like it or not, there is still racism and we as a society should adamantly oppose any law that institutionalizes and legitimizes the practice of stopping someone because they are brown, or have several people in the car, or are…god forbid dusty.
Incidentally, the police chiefs of most major cities are against this kind of thing because it amounts to an unfunded mandate that places an inordinate amount of financial strain on local police. It costs money to house immigration detainees, millions of dollars a year in a city of any size. This is money that most cities, in our times of budget shortfalls, do not have and if they do have it, wouldn’t that money be better spent on community issues(more cops or fire, fixing streets, schools). Kobach does not think so.
In his term as Secretary of State, a job that does not include anything having to do with immigration, he has spent very little time doing the SoS business or readying the state for the huge expenditure that his pet project, voter ids, will cost. That law went into effect on Jan 1, 2012, but no DMV or Election headquarter is able to make the the “free ids” that were promised in the bill so as not to disenfranchise low income voters. No one has been trained, there is no equipment, no one is sure how to do it. Similarly, you apparently need a birth certificate to get one of these ids and those, too were suppose to be free. Well that law, making them free, does not go into effect until 2013. Very convenient. Yet he has had time to give over 70 press conferences and interviews about immigration, attend many senate hearings to testify in favor of his pet bills styled after Arizona and Alabama and of course, bill hundreds of hours to OTHER cities and states defending them in their costly litigation over his anti immigration bills.
He is a crazy person and a racist. Period. And he is irresponsible with the taxpayer’s money and is ignoring his SoS job in Kansas in favor of making himself more famous. Vilest form of politician. Nothing but an opportunistic megalomaniac who cares only about doing what it takes to make him more political powerful.
Earlier this week I posted a series of emails between Mr. Kraus and a Missouri Resident who also is an ESL teacher in Missouri. This teacher contacted me after reading one of my blogs about SB590 and how it would be awful for her as a teacher and for her students and their families. I encouraged her to email the committee members. She did and the series of emails that I posted was the result. Feeling as though I could not let Mr. Kraus’ intentional ignorance of how difficult it is to determine the immigration status of someone I emailed him in response to the email he had sent the ESL teacher. I wanted to list that exchange. I have not received any other response from him after my last email. The bill passed form Committee as did the English Only DL bill showing that they are perfectly willing to completely ignore testimony and do what they want. Plus, judging from both his testimony and his comments in the emails, he clearly has not even read the bill. As you will see it is confusing, poorly written, and contradictory.
My email to him:
From: Angie Williams [mailto:email@example.com]
Sent: Wednesday, January 25, 2012 12:02 AM
To: Will Kraus
Subject: Your response to XXXXXXXXX regarding the simplicity of determining immigration statusI testified against your bill last Tuesday about the very things you address to XXXXXX in your recent email to her that she has been so kind as to forward to me. Since you either were not listening or Neither I nor the other attorney who testified about this issue were clear enough so I thought I would send you some concrete examples of why you are simply incorrect in your belief that one’s immigration status is easily determined, that it is not going to be a drain on resources to our schools and it is going to produce a meaningful number.Here is your response to her:
> You are right. I do not understand why it is a burden to be asked your immigration status. It is a simple fact, nothing more. You are either a citizen or not. If not, you are either documented or not. If you are documented showing that documentation is not a burden. If you are not, it is a simple answer to a simple question. Since we all agree federal law requires any child an education and since this bill prohibits any use of the information gathered other than to collect numerical data for DESE, I don�ft understand why anyone would be afraid of that process.
> The area undisputed is that lack of federal enforcement of current law costs Missouri taxpayers money. I don�ft believe attempts to quantify that amount are at all misguided.
> My door is always open,
> Will Kraus
Angela,It is simple.First, you seem to want to insert upon myself and this legislation things that are just not true. I have no desire to fix the federal immigration issue. That is the federal government’s job. I have no desire to create a list of twenty eight categories and the legislation does not ask for such. I have no desire to enter the (all too) complicated field of immigration law. And I have no desire to harm a single person. If you were willing to grant me those things we could start this discussion on more common ground. However you seem to assume I have negative intent, and that won’t get us anywhere.In your lists below, and I don’t have the time to answer each one, the answers are very simple. First we are only asking the current citizenship status of the CHILD. The parent’s status is not questioned or asked. If a child was born here they have a birth certificate and can be checked off as a citizen. If they are not citizens and have completed documents to be here legally they can be marked that way and show those documents, whatever they are. If they do not have completed documents, even if they are in the process, they are not here legally until those documents are completed.Will the data collected be full proof? Of course not, no data is. Will it give us a better estimate of costs than guesses provide by partisan groups? Certainly. The argument I have not heard, from any opposition, is that there is NO cost to taxpayers. Since there is a cost, I believe taxpaying Missouri families have a right to know what that cost is. You bring up morals but seem to only care about morality when it comes to helping non-citizens. I applaud those efforts from a moral (if not legal) perspective. I’m not sure why you can’t understand the moral argument on the other side that tries to protect families already here, many of whom are on the edge economically and just can’t afford the taxes they pay now, much less more.Angela, I’d prefer to not use guesses, but the closest guess I have heard is that illegal immigrants who live in Missouri cost the state over $300 million. That is $300 million that could go to education, social programs, and health care of OUR citizens. How is it moral to ignore that?My door is always open,Will KrausAnd here is mine to this email:
I actually do not think you have negative intent in that you are purposefully trying to pick on Hispanics, or Indians, or what ever other immigrant there is. What I am trying to point out is that your proposal is not a simple matter of looking at a utility bill. My point is that you are trying to come up with a number that does not exist and you are proposing that public schools, who are already very overburdened, be the ones to do it with no financial support to try to help. You first claimed that you are only trying to discover the citizenship status of the child and that the parent’s immigration status is not asked. but in the law it specifically says the school must determine if the child is born outside the jurisdiction of the United States or is the child of an alien not lawfully present. It says it twice in fact. I highlighted it below.
161.245. 1. At the time of enrollment of a student in a public
2 elementary or secondary school in this state, such school shall
3 determine whether the student enrolling was born outside the
4 jurisdiction of the United States or is the child of an alien not lawfully
5 present in the United States and qualifies for assignment to an English
6 as second language class or other remedial program.
7 2. When making the determination required by subsection 1 of
8 this section, the school shall rely upon presentation of the student’s
9 original birth certificate or a certified copy thereof.
10 3. If it is determined that the student was born outside the
11 jurisdiction of the United States or is the child of an alien not lawfully
12 present in the United States upon review of the student’s birth
13 certificate or where such certificate is not available for any reason, the
14 parent, guardian, or legal custodian of the student shall notify the
15 school of the actual citizenship or immigration status of the student
16 under federal law within thirty days of the date of the student’s
How else is it going to be determined if the child is a child of an alien not lawfully present unless the status of the parents is asked? In fact, what the statute asks is for the school to determine if the kid was born outside the jurisdiction of the US OR is the child of an alien unlawfully present in the US AND qualifies for ESL or other remedial services. So you are asking the school to determine if the child falls into one of 2 categories: 1. Born outside the Jurisdiction of the US or 2. Is the child of an alien unlawfully present and also qualifies for ESL or other remedial services.
The schools are suppose to do this by looking at a copy of the kid’s birth certificate. The problem with this is that looking at a birth certificate only shows the physical location of where someone was born. It does not give any indication if the child is a citizen (unless it is a BC from the US) or if the child is the child of a person unlawfully present and in need of ESL classes or Remedial classes. Finally, the law says that if it is determined that the kid was born outside of the US or is the child of an alien unlawfully present (now no qualification that they also have to qualify for ESL or other Remedial services like there is in the first paragraph) than it appears that section 3 asks the parents to provide the immigration status of the child under federal law within 30 days. This is where it is tricky because there are in fact situations where you are authorized to be here, yet have no official status nor any document to show you do.
Since the proposed law actually says under federal law than in order to comply there has to be a different method of counting those in between because they are in fact a class unto themselves. Your assertion that if they have completed paperwork but are not finished that they are not here legally is incorrect. Really there is not “legally” or “illegally.” There is in status and out of status, and having an application pending that gives you some immediate benefit while not conferring on you an actual visa classification is a status. Under immigration law if you have applied for extension of say you B1 tourist visa and that is being processed you are not considered out of status until the application is denied even if it is pending months after your original visa has expired. Similarly, a person who, for example, has applied for a VAWA application or a U visa or Asylum or Refugee status is in a protected status that is somewhere between. If they are denied their application they are for sure back to the out of status category, but while it is pending they are in a grey area that is really neither.
I say that because they are no longer at risk, baring a serious crime, of being put into removal proceedings. Once one of those application is filed for example there is a period of time that they continue to not be authorized to work but are not in danger of removal. After that period they will be allowed to apply for a work permit but are not in a category of immigrants yet because their application has not been approved or denied. With that work card they can get a social, driver’s license, work etc but they really do not have a status yet. So they will have documents showing they can stay here but no accompanying status designation. Maybe that doesn’t matter to you and you would count them as “illegal” anyways, but it is just not accurate and it is not what the proposed law seems to ask as it says that parents/guardians will provide the immigration status of the child according to federal law. Similarly, under federal law, unless an immigration judge has found an alien to be “unlawfully present” under a certain section of the Immigration and Nationality Act than he or she is not unlawfully present. Only an immigration judge is allowed to make that determination under federal law, so if the act requires that the school be notified of the immigration status under federal law the most the parent can do is say the child, entered without inspection, overstayed a visa or status pending. It is not the cut and dry answer you want but if you are going to use federal law as the basis then there is not going to be a cut and dry answer for many of the cases.
Secondly you also claim that the law does not ask for the creation of 28 categories but that a simple legal or no is all that it requires. However in this section below it specifically requires that the state board of education complete this annual report that provides data of lawfully present aliens by immigration classification, which means under what type of visa they have. That would mean that information would need to be provided by the schools. So all those Bs and Js and Ks would have to be determined.
. (1) The state board of education shall compile and submit an
42 annual public report to the general assembly. The report shall provide
43 data, aggregated by school, regarding the numbers of United States
44 citizens, of lawfully present aliens by immigration classification, and
45 of aliens believed to be unlawfully present in the United States enrolled
46 at all primary and secondary public schools in this state.
Similarly it goes farther and asks that these same categories be specifically applied to kids who qualify for ESL, so there will be a separate analysis for the ESL kids too.
47 shall also provide the number of students in each category
48 participating in English as a second language programs enrolled at such schools
It also says that the State board’s report must analyze the effect on the quality of education for other students that may have occurred, not that did, or that might occur in the future. How is that going to be determined? What if the effects on the quality of education is that all children are positively effected by going to school with students from other countries, thus exposing them to new cultures, languages and customs earlier in life making them better prepared for life in our international society and multi national world? The way this is written assumes that these kid’s presence effects education for the worst. Similarly I do no understand how these analysis can be made without some data from the classroom teachers, behavior of the children, problems with other students, time spent with them rather than citizens…
(2) The report shall analyze and identify the effects upon the
51 standard or quality of education provided to students who are citizens
52 of the United States residing in Missouri that may have occurred, or
53 are expected to occur in the future, as a consequence of the enrollment
54 of students who are aliens not lawfully present in the United States.
It also says that the report shall analyze the financial costs of providing these undocumented children with instruction, computers, textbooks, supplies, free or discounted school meals and extra curricular activities, which means that someone has to keep track of which “alien children unlawfully present in the US” are using at he very least non reusable supplies from the school, free or discounted meals and extra curricular activities. Unless you want the School board to just make up these numbers that means administration costs and monitoring costs at the school level.
) The report shall analyze and itemize the fiscal costs to the
56 state and its political subdivisions of providing educational instruction,
57 computers, textbooks and other supplies, free or discounted school
58 meals, and extracurricular activities to students who are aliens not
59 lawfully present in the United States.
You also say that since there may be even a small cost, the tax payers of Missouri need to know how much and that this formula is going to provide a better number than those provided by “partisan” groups. This report will be no different than any numbers by any partisan groups because it 1. Does not take into account taxes paid by the family of the undocumented child (at some point the child of the alien unlawfully present as well as “child of alien unlawfully present and qualifies for assignment to ESL or other remedial program, incidentally, while ESL is mentioned again, the “other remedial programs is not is just dropped from the statute)2. It doesn’t take into account any personal funds paid to the school for textbooks, extracurricular activities, field trips, fund raisers etc. 3. It inaccurately counts and improperly defines unlawfully present aliens. It is written in a way that presupposes 1. a negative effect in the quality of education for citizens (doesn’t mention or seem to care about those immigrants who have a status with a card to match) 2. a $0 contribution on the part of the unlawfully present student’s family in taxes and money given directly to the school.
It also tells the state board to make up some criteria for determining how unlawfully present aliens impact education for citizens (again not all legal student). In both cases it directs them to contract with reputable scholars to make this stuff up or analyze the data and prepare reports. So it is going to cost money at the state level to compile all this data and present it to the assembly as well as cost the schools money, time and resources to get the first level of data to the state board. That is alot of money to be spent to create a report that does not state a number any more accurately than all of these partisan reports that you claim to have. So, even using your $300 million dollar number, which I have never heard, and I eat sleep and breath this subject, we are now using this amount to educate them and adding all the costs of each school district in compiling and the state board in hiring experts to create criteria to measure how one child negatively impacts another by virtue of a status your formula may not even have gotten right and then making guesses on how it may have already effected the quality of education, how it MIGHT effect it in the future, writing all that up and presenting it to the general assembly then instituting that criteria they have been mandated to develop in all the schools. Not to mention the fact that you are not calculating the cost to Missouri tax payers of litigating this issue in federal court because we will get sued, not only by pro immigration groups and civil liberty groups like the ACLU but also by the Justice Department.
Putting aside the wisdom of this kind of law and feelings about immigration, I cannot for the life of me understand why it is being proposed when it is still being litigated. Here is a scenario that might put it into more perspective, your neighbor ripped off the side of his house to build a huge edition, spent tons of money of plans, materials and did so because the local “expert” on land use and permits told him he could do it without a permit or variance because in his untested interpretation he didn’t need one. After your neighbor has spent all this money and time and resources and got half way done, the city comes in and issues an injunction saying he has to stop because the “expert” is wrong about his untested theory. Your neighbor now has to spend more money on legal fees to fight this. You see his addition and think you would like to build one just like it so you go to him to find out who did his work, drew the plans etc. He then tells you about all the legal problems he is having with it and tells you about his untested theory as to why he is right. Maybe you agree with his interpretation, maybe not, maybe you think he might have a point but it could go either way. Whatever you opinion is, I bet you don’t choose to start ripping walls off of your own house and spending a ton of money just like your neighbor knowing you too are going to get sued, and have to stop in the middle and then spend a bunch of money on lawyers. I bet you wait and see how his own litigation turns out. If you wouldn’t do that with your own money why are you willing to do it with the tax payers you are so sure you are protecting. If nothing else it is so fiscally irresponsible to propose something you are 100% sure is going to end in a law suit that will cost millions. That is a number you can accurately predict and is readily available because you can simply look at Arizona, Georgia, South Carolina and Alabama. Let them fight it out and pay for it, when the dust clears if you are still so sure that money needs to be spent to study something that cannot be changed by the states then write a law that is in accordance with what the Supreme Court decides. Missouri is not going to be a trail blazer in anti-immigrant state laws with this bill because it has all, every word, already been tried and enjoined and is currently being litigated.
So far this plan only seems to spend more money and give nothing in return. Even if we assume it will give an accurate number…so. Federal law says that all children get to go to school no matter their status. It comes to nothing except spending more money. Since you also brought up morally, I am very interest in helping all people, immigrants and citizens. It is why I am writing another too long email to someone who probably isn’t going to be swayed at 1 am. Our current national discourse on immigration is not good for anyone. Not legal immigrants, “illegal” immigrants, citizens or any of those status’ in between. It is not good for our nation, for race relations, for our appearances to the rest of the world or for our economy. One of the reasons that this kind of law so angers me and so scares me is because it is going to produce a number (one I think is meaningless, but lets assume it can be given some legitimacy) that is going to be used to further polarize this discussion. If the number comes up with some astronomical amount that we as Missourians are allegedly spending to educate undocumented children and some made up criteria that shows immigrants have a negative impact on the education of citizens it is going to further anger people, make them more intolerant to immigrants or those perceived to be immigrants and more dug in about not discussing reform. If it produces a number that is very low because, say the person we contract with actually takes into account what each immigrant family pays, and makes and evaluation that shows having many cultures in a school is a positive impact on students and the undocumented children are class leaders, act no different than the other kids and are an asset to a school and a school district, that report will be disregarded out of hand as clearly biased and skewed in favor of liberals. It is a no win situation unless what you really want is to create an environment so hostile that no immigrant wants to come here. Then it will work wonders.
believe it or not I do not want amnesty for all undocumented people. I want a system that wasn’t designed in a time when it was a HUGE deal to make an international phone call much less travel internationally. The fact that I can get on a plane within a few hours and travel to the farthest point away from Kansas City in less than 2 days and for less than my monthly mortgage or that I could order a t-shirt from that same distant place right now on the internet and have it by Friday afternoon means we have a different world and a system that desperately needs to be updated to reflect that. I know you said that you have no interest in fixing federal law because it is their job, but the problem is that this exact kind of law is what is keeping them from doing anything. Every time there has been discussion of reform since GW Bush it has been shot down by the 100% secure borders and enforcement only crowd. That is just never going to happen. We are never going to have 100% secure borders, we are never going to deport all 11 million undocumented people. If we want to fix this problem we need to be discussing solutions not pipe dreams. This type of legislation just gets people all riled up about this issue and unable or unwilling to discuss compromise or an actual workable solution. Whatever the number is, its not going to do anything positive to help Missouri nor the larger issue of our immigration problem.
It will just keep people angry and unthinking. I want this problem to have a solution. I want there to be reform that 1. Protects our national security interests 2. Promotes and allows businesses to easily recruit the best and the brightest and most degreed and talented people from all over our world to come work for our companies in this country developing the next ipad or smart car 3. Promotes and Allows businesses that need unskilled labor that they cannot find in the US to easily recruit out of the US 4. Provides avenues for these businesses to make those workers that are contributing to our economic growth a way to become permanent residents in an reasonable amount of time. 5. Values and protects the sanctity of the family by not forcing families to wait for 10+years for visas or remain separated for 10+ years 6. Acknowledges that there are people in this country that have been here for years and years, that are not committing crimes, running businesses, raising good children, working contributing paying taxes and finding some way to allow them to obtain legal status. I want to be able to deport all the criminals and have ICE agents spending the majority of their time catching traffickers and the like. I want to have those who deserve it regulate their status and pay whatever to do so. But right now and for the past 5 years or more our only discussion has been no discussion until 100% enforcement. That is just never going to work.
If you really want to save the tax payers money the push for change not a law that is going to cost a ton and give us nothing. Again I have only discussed the school. Look at Chicago’s recent decision not to hold ICE prisoners anymore because of the millions of dollars it was costing the city.
Finally, and this is the last thing I promise, well for now, while there is a provision that it shall be unlawful to disclose this information, there is no penalty for doing so. This is a very emotional issue and this kind of information in the hands of someone who does in fact have evil intent could be very dangerous to the family, the child, the other students, other people of the same race or other immigrants in general. It would just take one slip of the tongue or misplaced statement and and we could have a disaster. The fact that Senators came in yesterday to find gun targets on their doors proves that there is violence just barely contained under the surface of many people, especially on this subject. Google news articles on immigration and read the comments. They are violent and hateful. This information will end up hurting someone and there is nothing in this law that remedies that.
I do understand wanting to protect people who are on the edge as you say, but this is not going to do that. It is going to cost money in collecting this information, putting together these reports, establishing all these criteria, housing all these people waiting for ICE, prosecuting people for not having documents (I didn’t discuss that section either, but there are some real technical problems in the wording), and in the law suits that will follow if it is passed. For what? What is actually achieved by this study? A number that is inaccurate? More resentment against immigrants? Violence as a result? Maybe they will keep the kids home then there will be the social cost of having all these uneducated kids, or unsupervised kids at home afraid to go to school. Maybe they will move out, causing business to close and jobs to be left vacant. It happened in Alabama and Georgia it will happen here. This is just not the answer.
I hope that further explains my position and maybe even opens a dialogue. I was assuming that the intent was, as I said deportation by attrition or self deportation because other states that have done the same thing have openly said as such. I did not mean to imply that it was because you hated immigrants.
I would welcome further thoughts. And, actually I am very impressed that you even answered. Thank you for taking the time to do so, even if it was an aid that answered, it is the only non canned “thank you for contacting my office” response I have gotten.
Angela L. Williams