The opportunities and barriers to immigrant integration in the United States today are shaped by historical, legal, economic, and institutional contexts. At present, immigration law is one of the most important of these contexts in that it creates varying degrees of stability and opportunities, with potentially profound implications for immigrant integration.
Legal status has varied over time in its consequences for immigrant integration. Early in the country’s history there was little attention to legal status and noncitizens could even vote in federal elections. The U.S. Constitution does not forbid noncitizens from voting in federal elections and, until the 1920s, at least 22 states and federal territories, and possibly more, allowed noncitizens to vote at some point (Bloemraad, 2006; Hayduk, 2006). Various states and territories viewed alien suffrage as an incentive to encourage settlement. In the early 1800s, several states in the Midwest allowed male residents to vote, regardless of their citizenship status, and in the second half of the 19th century, 13 states implemented policies aimed at attracting immigrant residents by giving voting rights to “declarant aliens”—immigrants who had declared their intention to become U.S. citizens by filing “first papers” (Raskin, 1993).
The 1790 and 1870 Naturalization Acts restricted naturalization to only white and then subsequently black immigrants. The Chinese Exclusion Act of 1882 explicitly barred Chinese immigrants from citizenship through naturalization, and curtailed almost all Chinese migration, while the Immigration Act of 1917 delineated an “Asiatic Barred Zone” from which migration was prohibited. Asian immigrants challenged their ineli-
gibility for naturalization, but court rulings such as United States v. Bhagat Singh Thind, 261 U.S. 204 (1923), upheld Asian immigrants’ ineligibility for naturalization. Beyond setting up barriers to political integration, lack of U.S. citizenship could matter for jobs and owning property. In many Western states, noncitizens were barred from the right to own land. Thus, legal status also blocked Asian immigrants’ economic and social integration into American society.1 For white European immigrants who entered the United States without inspection to avoid the Quota Acts of the 1920s, there were relatively few repercussions, and they were often able to naturalize at a later date (Ngai, 2004; Kanstroom, 2010). In recent decades, however, the importance of legal status has grown, as have the variety of different legal statuses that immigrants can hold.
Since its inception, the United States has grappled with two sets of competing demands relevant to immigration: first, the conflict between federal and state rights, and second, the needs of immigration enforcement versus immigrant integration. Policy makers, bureaucrats, and immigrants also face laws and policies that are not targeted toward immigration per se but nevertheless have profound implications for immigrant integration. Beyond law, many institutions structure the life chances of immigrants and their children, including government agencies, nonprofits, informal associations, the overall economy, and the business sector. For example, immigrants in certain cities and counties can rely on significant support from local government agencies, while voluntary organizations, such as Catholic Charities, the International Rescue Committee, and the Hebrew Immigrant Aid Society have long worked in public-private partnerships to help settle refugees and displaced people moving to the United States. Integration therefore occurs within a patchwork of laws, policies, and agencies at multiple scales of governance, with variation across place and by designated legal status.
The legal framework for immigration in the United States is built on three levels: federal, state, and local. For much of the 19th century, immigration and naturalization laws were primarily instituted at the state and local level, with little federal oversight or intrusion, with the notable exception of exclusions from citizenship based on race.
By the turn of the 20th century, the federal government began to take a larger role in immigration, naturalization, and integration, primarily focused on restricting certain groups from entering the United States. Federal supremacy in defining conditions of entry continued through the 20th century, even as the shape of federal law changed from increasing restriction
1 The U.S. Supreme Court affirmed, in United States v. Wong Kim Ark, 169 U.S. 649 (1898), that the children of immigrants born on U.S. soil are automatically U.S. citizens under the 14th Amendment, regardless of whether or not the immigrant parents were eligible for citizenship, as was the case for Asian immigrants (see Chapter 4).
through 1924, followed by small openings during World War II, to significant revisions starting in 1965. At the same time, states continued to play a significant role in regulating immigrants’ access to licenses, public employment, benefits, and other aspects important to immigrant integration.
Today, immigrants’ prospects for integration are shaped by continued dynamics of coordination and tension between federal, state, and local government and between dual interests in enforcement and integration. These tensions also reflect different economic costs and benefits. States and localities do not control who can enter the United States, but in some cases they may bear part of the fiscal burden of immigration (Smith and Edmonston, 1997).2,3 States and localities have enacted their own complementary or conflicting policies and laws to address the needs of their communities in the perceived absence or inadequacy of federal action. Three important legal and institutional developments of the past 30 years stand out: (1) the proliferation of immigration statuses that provide different degrees of permanence and security; (2) the complex and at times contradictory policies and laws linked to those statuses; and (3) the broadening of grounds for removal and constraints on relief, with the related centrality of Executive action to immigrants’ prospects. Each of these factors shapes or undermines opportunities for immigrant integration. Thus, while federal law continues to define the formal legal status of immigrants in the United States, policies at the state and local level are also central to their integration trajectory (Rodriguez, 2014).
This chapter analyzes the legal and institutional framework for immigration, beginning with a brief history of immigration policy in the United States and the development of what legal analysts call “immigration law” and “alienage law” as the federal government expanded its role in this arena. Next, it examines the proliferation of legal statuses since 1965. Last, it details the current framework for immigration federalism and the tension between two competing trends: increasing enforcement and federal supremacy over exit and entry, and the devolution of decisions about public benefits to states, coupled with the delegation of integration efforts to state and local government and nongovernmental organizations.
2 For further information on the fiscal impacts of immigration on states, see http://www.ncsl.org/Portals/1/Documents/statefed/LiteratureReview_June%202013Final.pdf [August 2015].
3 Estimating the fiscal impacts of immigration is the stated charge of the National Research Council’s Panel on the Economic and Fiscal Effects of Immigration. That panel’s final report is scheduled for release in 2016.
The federal government did little to regulate immigration, citizenship, and integration in the first century after the nation’s founding. With the exception of the 1790 Naturalization Act, the Alien and Sedition Act (1798), and various treaties and informal agreements, the federal government played a limited role (see Table 2-1). A federal immigration bureau was established only in 1890, followed by the federal naturalization service in 1906. Instead, states and localities were the “primary immigration regulators” (Neuman, 1993). Some tried to channel migration through regulation of shipping lines, while others focused on local rights or benefits tied to residency. Some populous states, like New York, had “robust” immigration and integration agencies (Law, 2013). Meanwhile the first federal naturalization legislation, enacted in 1790, gave authority over naturalization to any common law court of record in any state (this was amended in 1795 to include courts in the territories or a federal court), leading to wide variation in procedures and citizenship acquisition across the country (Raskin, 1993; Law, 2013). From the perspective of the contemporary period, this early period was remarkable for its lack of federal oversight and the relative unimportance of immigration status or citizenship. Residents’ race, gender, and ownership of property were much more consequential for rights, access to benefits, and shaping life chances (Smith, 1999).
Development of Immigration Federalism, 1875-1970
After the Civil War, states began to pass laws attempting to regulate immigration both by requiring newcomers to post bonds upon entry and by attempting to control the privileges or rights given to noncitizens. This set the stage for conflict between federal and state control that still characterizes the regulation of immigration, alienage, and immigrant integration today. In 1875, the Chy Lung v. Freeman Supreme Court case (92 U.S. 275) proved a turning point in the balance of power over immigration because the court “emphatically stated that control over the admission of foreigners into the country was exclusively a federal responsibility” (Gulasekaram and Ramakrishnan, 2015). But it left open the possibility for limited state and local regulation, opening the door to a distinction between immigration law—regulation over exit and entry—and alienage law, which regulates noncitizens’ access to social benefits and licenses and restricts their options relative to citizens (Rodriguez, 2014).
In addition, in 1875 Congress passed the first restrictive federal immigration law, the Page Act, which prohibited the entry of “undesirable” immigrants and targeted Asian migrants both at their ports of departure and at entry into the United States (Peffer, 1986). Subsequently, the execu-
TABLE 2-1 Significant Federal Immigration and Naturalization Statutes
|1790||Naturalization Act||Established criteria for U.S. citizenship through naturalization; restricted naturalization to any “free white person”|
|1868||Fourteenth Amendment of the U.S. Constitution||Enshrined the right of birthplace citizenship for any person born in the United States|
|1870||Naturalization Act||Broadened naturalization “to aliens of African nativity and to persons of African descent”|
|1875||Page Act||Banned “involuntary” immigration from Asian countries and transportation of women for prostitution; banned immigrants who had committed crime|
|1882||Chinese Exclusion Act||Restricted immigration from China; barred Chinese immigrants from naturalized citizenship|
|1891||Immigration Act of 1891||Established federal immigration bureaucracy|
|1906||Naturalization Act||Established a federal Naturalization Service to promote uniform naturalization practices|
|1917||Immigration Act of 1917||Further restricted Asian immigration; excluded various categories of persons based on disability or moral criteria; introduced literacy test|
|1924||Immigration Act of 1924||Established strict national origin quotas restricting large-scale immigration from eastern and southern Europe and effectively barred Asian immigration|
|1924||Labor Appropriation Act||Created Border Control|
|1952||Immigration and Nationality Act||Abolished race-based bars of immigration and naturalization; allowed limited Asian migration|
|1965||Hart Celler Act amending the Immigration and Nationality Act||Abolished national origin quotas; established a preference system based primarily on family reunification; some provisions for skilled labor and refugees; established first numerical limitation on Western Hemisphere migration, including migration from Mexico|
|1980||Refugee Act||Established the criteria for admission of refugees and immigration based on humanitarian relief; created the federal Refugee Resettlement Program|
|1986||Immigration Reform and Control Act||Provided path to legalization for many undocumented persons and created sanctions for employers hiring unauthorized workers|
|1990||Immigration Act||Raised the quota ceiling on family-sponsored visas, created the diversity lottery; enacted new high-skilled visa categories; enacted new Temporary Protected Status designation|
|1996||Personal Responsibility and Work Opportunity Reconciliation Act||Restricted legal immigrants’ access to social welfare benefits, and barred undocumented immigrants from most federal and state benefits; devolved authority on qualification for benefits to states|
|1996||Illegal Immigration Reform and Immigrant Responsibility Act||Expanded border protections and interior enforcement; permitted cooperative agreements among federal, state, and local authorities to aid immigration enforcement; expanded grounds for removal; created pilot program for E-Verify|
|1996||Antiterrorism and Effective Death Penalty Act||Made deportation of Lawful Permanent Residents convicted of an aggravated felony mandatory; expanded definition of aggravated felony|
|2001||USA Patriot Act||Reorganized federal immigration bureaucracy and created the Department of Homeland Security; expanded border enforcement and grounds for immigrant inadmissibility|
|2005||REAL ID Act||Created national standards for state-issued identification cards|
|2008||Secure Communities||Allowed for data sharing between states and localities and federal government to identify and deport immigrants with criminal convictions|
tive and legislative branches built up the federal U.S. immigration system, while the judicial branch continued to develop the nuances of immigration and alienage jurisprudence. In 1882, the Chinese Exclusion Act barred most Chinese immigration and also specified that Chinese immigrants were ineligible for naturalization. Congressional restrictions on immigration from Asia expanded in subsequent decades, culminating in the Immigration Act of 1924, which enshrined national origin quotas that effectively barred any vestige of migration from Asia. It also sharply curtailed immigration from eastern and southern Europe (Ngai, 2014; Tichenor, 2009).
Supreme Court cases spurred the creation of two interrelated legal frameworks that continue to set the parameters for authority over immigration: preemption and alienage (see Table 2-2). In cases upholding the Chinese Exclusion Act, the Supreme Court made it clear that the power to enact immigration laws rests solely with the federal government because Congress possesses plenary authority to regulate entry, exit, and the terms of immigrants’ presence under the Supremacy Clause of the Constitution; state and local laws cannot contradict or undermine federal immigration regulation (Rodriguez, 2014). A distinct alienage framework developed from another court case, Yick Wo v. Hopkins, 118 U.S. 356 (1886), in which the Supreme Court struck down a local San Francisco ordinance targeting Chinese-owned laundries. Thereafter, courts acknowledged federal dominance with respect to alienage (how citizens and immigrants can be treated differently) but allowed for some state and local control over the everyday lives of immigrants. While state laws and local ordinances that seek to regulate the entry or legal presence of immigrants are banned via preemption, the alienage framework allows some room for state and local laws that treat immigrants and citizens differently. State and local laws that seek to differentiate between citizens and noncitizens are subject to heightened review under the Equal Protection Clause of the 14th Amendment, to determine whether distinctions between citizens and aliens are justified (Rodriguez, 2014). Although the line separating immigration and alienage law remains blurry, the distinction carries consequences to the present day, as courts continue to struggle to delineate when and where states and localities have authority over the immigrants living in their jurisdictions.
Federal Laws and the Proliferation of Statuses, 1965 to Present
The 1965 Hart Celler Act eliminated national origin quotas, which many Americans had come to see as rooted in racist ideas about nonwhites and at odds with the spirit of the U.S. Constitution (Zolberg, 2006). The act was passed along with the Civil Rights Act of 1964 and the Voting Rights Act of 1965. Having opened the door to new migration, the United States entered the 1970s on an expansionary trajectory, as is evident in the im-
migration profile sketched in Chapter 1. However, statistical descriptions of the number, origins, and other demographic features of contemporary immigrants obscure another central immigration story unfolding since 1971: the development of an increasingly complex system with a proliferation of legal statuses, along with consequential distinctions between these statuses. These distinctions are based on immigration law, alienage provisions, and the consequences of legislation and regulations enacted in policy arenas beyond immigration.
On the legislative side, federal laws have led to increases in both legal and unauthorized immigration, while sometimes explicitly limiting, and at other times encouraging, state and local enforcement schemes (Rodriguez, 2014). The 1980 Refugee Act established formal criteria and legal statuses for the admission of refugees and migrants of humanitarian concern, including the establishment of an asylum system and the federal Office of Refugee Resettlement, an agency in the Department of Health and Human Services explicitly focused on assisting refugees with integration (see Table 2-1). The 1986 Immigration Reform and Control Act legalized the status of undocumented residents who could prove long-term residence and of certain migrant agricultural workers; it also created the first federal sanctions for employers knowingly hiring unauthorized workers. At the same time, this 1986 law left open the possibility for states to penalize businesses by restricting their operating licenses (see Chamber of Commerce v. Whiting, 2011; Table 2-2).
The 1990 Immigration Act created new high-skilled visa categories and a new diversity lottery to allow people from countries underrepresented in the United States to migrate legally; it also raised the quota on family-sponsored migrants. Demand for family sponsorship has nevertheless far outstripped supply, and there are large backlogs for countries with large numbers of immigrants. Wait times for particular family categories from countries with large immigration flows, such as Mexico and the Philippines, have often exceeded 20 years.4 The 1990 Act also created Temporary Protected Status (TPS), a temporary status discussed further below.
The federal government exerts profound influence over immigrant integration through the definition of status. A wide variety of statuses exist under federal immigration law, each of which establishes foundations for integration of varying stability and scope. These statuses fall into
4 Priority dates for each category are listed in the State Department visa bulletins, updated monthly, see http://travel.state.gov/content/visas/english/law-and-policy/bulletin.html [October 2015].
TABLE 2-2 Key Supreme Court Federalism Cases for Immigration and Alienage
|Year||Case/Opinion Citation||Law Contested||Outcome|
|1875||Chy Lung v. Freeman, 92 U.S. 275||California law requiring bond for certain arriving immigrants||Law struck down|
|1875||Henderson v. Mayor of New York City, 92 U.S. 259||New York law requiring bond for arriving immigrants||Law struck down|
|1886||Yick Wo v. Hopkins, 118 U.S. 356||San Francisco law regulating laundries||Law struck down|
|1889||Chae Chan Ping v. United States, 130 U.S. 581||Federal Chinese Exclusion Act||Law upheld|
|1893||Fong Yue Ting v. United States, 149 U.S. 698||Federal Chinese Exclusion Act||Law upheld|
|1896||Wong Wing v. United States, 163 U.S. 228||Federal Chinese Exclusion Act||Law upheld|
|1914||Patsone v. Pennsylvania, 232 U.S. 138||Pennsylvania law banning noncitizen hunting||Law upheld|
|1915||Truax v. Raich, 239 U.S. 33||Arizona law requiring businesses to hire mostly citizens||Law struck down|
|1927||Ohio ex rel. Clarke v. Deckenbach, 274 U.S. 392||Cincinnati law barring noncitizens from operating billiard halls||Law upheld|
|1941||Hines v. Davidowitz, 312 U.S. 52||Pennsylvania alien registration law||Law struck down|
|1948||Takahashi v. Fish & Game Commission, 334 U.S. 410||California law denying commercial fishing licenses to noncitizens||Law struck down|
|1948||Oyama v. California, 332 U.S. 633||California Alien Land Law barring noncitizens from owning land||Law struck down but only applied to U.S. citizens of Japanese descent|
|1971||Graham v. Richardson, 403 U.S. 365||Arizona and Pennsylvania laws denying public benefits to certain noncitizens||Laws struck down|
|Year||Case/Opinion Citation||Law Contested||Outcome|
|1973||Sugarman v. Dougall, 413 U.S. 93||New York law barring noncitizens from civil service positions||Law struck down|
|1976||De Canas v. Bica, 424 U.S. 351||California law penalizing employers for hiring unauthorized workers||Law upheld|
|1976||Mathews v. Diaz, 426 U.S. 67||Federal law denying Medicare benefits to certain noncitizens||Law upheld|
|1978||Foley v. Connelie, 435 U.S. 291||New York law barring noncitizens from becoming state troopers||Law upheld|
|1982||Plyler v. Doe, 457 U.S. 202||Texas law allowing state to not fund public education for undocumented children||Law struck down|
|1982||Toll v. Moreno, 458 U.S. 1||University of Maryland policy denying in-state status to nonimmigrants||Policy struck down|
|1995||LULAC v. Wilson, 908 F. Supp. 755, 786-787 (C.D. Cal)||California Proposition 187 denying benefits to, and increasing enforcement against, undocumented immigrants||Law struck down by lower courts|
|2011||Chamber of Congress v. Whiting, 563 U.S. ___||Arizona law sanctioning employers who hire undocumented workers||Law upheld|
|2012||Arizona v. United States, 567 U.S. ___||Arizona law enforcement bill targeted at undocumented immigrants||Parts of law struck down; provision requiring police to verify the citizenship status of anyone lawfully detained was upheld|
|2014||Arizona DREAM ACT Coalition v. Brewer, 13-16248 (9th Circuit Court of Appeals)||Arizona law denying drivers licenses to immigrants with Deferred Action for Childhood Arrivals||Blocked by lower courts|
four approximate categories: permanent, temporary, discretionary, and undocumented.
The paradigmatic immigration status is lawful permanent residency—often referred to as “having a green card.” Lawful permanent resident (LPR) status historically has served as a way station to citizenship (Motomura, 2007) and has constituted the strongest anchor the law provides for noncitizens. The alienage law governing LPR status has been relatively stable for three decades because courts subject the distinctions drawn between citizens and LPRs by state and local governments to heightened review under the Fourteenth Amendment’s Equal Protection Clause (Graham v. Richardson, 1971; Rodríguez and Rubio-Marin, 2011). Today this principle effectively means that any distinction drawn by states and localities without federal authorization, other than those that go to the heart of the state’s definition of its political community (Sugarman v. Dougall, 1973; Table 2-2), are constitutionally invalid (Rodriguez, 2014).
Although Congress can place virtually any contingency on permanent status it deems appropriate, a limited but potentially consequential set of distinctions exists today. The primary “disabilities” that attend LPR status and likely affect integration prospects are the lack of voting and other political rights, constraints on access to certain public benefits, and most profoundly, the absence of the right to remain (Rodriguez, 2014).
Alongside the regime of permanent immigration under lawful permanent residency, a complex system of temporary immigration statuses has taken shape. Temporary visa holders are entitled to only limited periods of presence in the United States. Some of these visas are granted for particular employment purposes, ranging from agricultural and service jobs to high-skilled technical and academic positions (Myers, 2006). The number of these temporary “nonimmigrants” dwarfs the number of LPRs admitted under the employment categories each year. In 2012, for example, more than 600,000 nonimmigrants were admitted for employment purposes, compared to 144,000 employment-based LPRs (although over 1 million LPRs were admitted in total, due to the system’s heavy bias toward family immigration) (Wilson, 2013). Significant numbers of temporary visa workers eventually adjust to LPR status or develop ties to employers and U.S. citizens that lead to a desire to remain, making the integration question relevant (Myers, 2006, p. 11). And although some temporary visas only en-
able seasonal presence, many others, such as the H1-B visa, permit repeated renewals that can result in presence for a decade or more.
The largest nonemployment-based temporary status is Temporary Protected Status, created by Congress as part of the Immigration Act of 1990 (Public Law 101-649). TPS was designed as a mechanism to provide temporary protection to individuals who are unable to return to their home countries because of an armed conflict, environmental disaster, or other condition that is deemed temporary. Since 1990, various countries have been designated (and in some cases delisted from) the TPS category, and the continuing designation of some countries has led to large populations of temporary nonimmigrants with TPS residing in the United States for extended periods of time.
Constitutionally speaking, the equal protection constraints on state authority apply for the most part to all those lawfully present, including those in temporary statuses. Negative integration consequences can result from the perception that low-skilled immigrants will not be long-term residents and from the labor exploitation that could result from temporary visa workers’ inability to change employers. To the extent that the legal structure fails to provide adequate avenues to long-term presence for those with temporary status who develop ties to the United States but lose their temporary status, these statuses also exacerbate the problem of undocumented immigration. However, policies designed to extend the rights granted LPR status throughout the legal-status system might result in less tolerance for immigration generally (Rodriguez, 2014; Ruhs, 2013).
The third category of immigration status under federal law is discretionary status: lawful status conferred through Executive discretion. The most important discretionary status is deferred action status. Unlike TPS, deferred action has no statutory foundation but is instead part of Executive authority to determine whether to initiate or pursue removal in a particular case. The executive branch has long relied on deferred action to manage its docket and provide a form of humanitarian relief, but until the Obama administration initiated Deferred Action for Childhood Arrivals (DACA) in 2012, it had not been used as a form of categorical relief. Under DACA, unauthorized immigrants between the ages of 15 and 30 who were brought to the United States as minors and meet certain criteria are granted both work authorization and temporary protection from deportation.5 In November 2014, President Obama expanded DACA and created Deferred Action for
Parental Accountability for parents of U.S. citizens and LPRs, although as of April 2015, these changes have been halted by the courts. Notably, deferred action is not intended to result in permanent presence, and the fact that the Executive retains authority to terminate the statuses makes them inherently unstable, a distinction the panel discusses further in Chapter 3.
Undocumented status, also called “unauthorized” or “illegal,” is the direct if unintended result of the development of legal statuses over the last century. Although the image of those in undocumented status is of migrants who entered without inspection by illicitly crossing the border, an estimated 45 percent of immigrants with this status entered the United States legally via other statuses and then fell “out of status” when those statuses expired or were revoked (visa overstayers).6 Undocumented status may also be a starting point for transitions to other legal statuses, such as TPS, although it is much easier for visa overstayers to transition to other statuses than it is for those who entered without inspection. As discussed throughout the report, undocumented status offers few legal protections and is inherently unstable because the undocumented are at constant risk of deportation, which poses significant barriers to immigrant integration.
Since 1971, immigration federalism has been shaped by two trends. First, the federal government has continued to strengthen its control over immigration enforcement while continuing to expand the grounds for removal. Despite the steady increase in unauthorized immigration until the Great Recession in 2007 and the perception by many that the federal government has done little to secure the U.S. borders or enforce immigration law, there has been unprecedented growth in funding, technology, and personnel dedicated to enforcement over the past 20 years. In fiscal 2012, spending on immigration enforcement was almost $18 billion, exceeding by approximately 24 percent the combined total funding of the Federal Bureau of Investigation, Drug Enforcement Agency, U.S. Secret Service, U.S. Marshals Service, and Bureau of Alcohol, Tobacco, Firearms, and Explo-
6 The Department of Homeland Security has not issued an estimate of the number of visa overstayers. Pew Research Center estimated 45 percent in 2006 (see Pew Research Center, Modes of Entry for the Unauthorized Migrant Population. Hispanic Trends Fact Sheet, see http://www.pewhispanic.org/2006/05/22/modes-of-entry-for-the-unauthorized-migrantpopulation/ [August 2015]).
sives, and 15 times the amount it spent in 1986, the year the Immigration Reform and Control Act was enacted (Meissner et al., 2013). Since 1990, millions of immigrants have been detained and deported from the United States. And when states have attempted to take a stronger role in enforcement, as Arizona did in 2010 with the passage of The Support our Law Enforcement and Safe Neighborhoods Act (SB 1070),7 they have generally been blocked by the courts.8
Second, the federal government has devolved decisions about whether and which immigrants can access public benefits to states and localities, while simultaneously delegating the majority of integration services to state and municipal governments and nongovernmental organizations. So while the federal government maintains tight control over immigrant entry and exit, it has given states significant leeway in determining access to various social benefits and is often only indirectly involved in immigrant integration efforts. These two trends—federal enforcement and decentralized integrative strategies—are discussed in the next two sections.
As noted in Chapter 1, an important part of the context for immigrant integration today has been the increase in federal immigration enforcement, including the militarization of the U.S.-Mexico border, the increase in interior enforcement, and the unprecedented rise in deportations of noncitizens after 1990 (see Figure 2-1). And while the executive branch has increased funding and resources for immigration enforcement, Congress has steadily expanded the grounds for removal while limiting the avenues for relief. The Anti-Drug Abuse Act of 1988 played a pivotal role in creating the current legal framework because it created the concept of “aggravated felony” and rendered deportable any noncitizen convicted of a crime that falls within the definition. Congress expanded the scope of the definition dramatically in the ensuing years via the Antiterrorism and Effective Death Penalty Act (1996), the USA Patriot Act [Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001] and other legislation (see Table 2-1), while closing off most avenues of relief, including cancellation of removal and asylum and eliminating judicial review of discretionary denials generally (Legomsky, 2000).
The steady expansion of grounds for removal and corresponding limi-
7 This Arizona statute was introduced in 2010 as Senate Bill 1070 and is therefore commonly called “SB 1070.”
8 The Obama administration’s lawsuit against Arizona’s Senate Bill 1070 was novel, as the government has historically relied on private litigants to bring preemption claims against state laws.
tation of relief have had serious consequences for immigrant’s integration prospects because anyone who has not been naturalized is now theoretically deportable (Kanstroom, 2007). Both developments destabilize LPR status by rendering even long-time residents more easily removable. This increased uncertainty in turn has significant implications for immigrant families (see Chapter 3).
Congress has shown little if any interest in revisiting the grounds for removal, and the absence of legislative movement on this issue has resulted in what could be described as “compensation” by the executive branch (Cox and Rodriguez, 2009, pp. 519-528). The last three administrations have issued memoranda instructing prosecutors for the Immigration and Naturalization Service and its successor, Immigration and Customs Enforcement, to take factors such as family ties and links to the community into account when determining whether to initiate removal (Wadhia, 2010). Most recently, the Obama administration has issued a series of memoranda emphasizing that interior enforcement should be directed first and foremost at noncitizens who present national security or public safety risks. Despite the record number of removals under the Obama administration (Figure 2-1),
the executive branch has also used its discretion to shift enforcement resources from the interior to the border (Rosenblum and Meissner, 2014), away from worksite raids and toward employer audits, and away from home raids toward reliance on the criminal justice machinery (Rodriguez, 2014; Chacón, 2006).
These discretionary moves may reduce the risk of removal and leave greater numbers of families and communities intact. Shifting resources away from targeting workplaces and homes can make enforcement operations less disruptive to immigrant communities, even if the number of removals continues to increase. And in theory, shifting resources away from interior enforcement to recent entrants at the border can provide significant relief for established immigrant families because the targets of interior enforcement are more likely to have community and family ties than recent entrants, although some (and perhaps many) of the latter may also be attempting entry (or re-entry) to the United States to reunite with families. However, executive discretion is a limited tool for immigrant integration because Congress has expanded the grounds for removal, and discretionary statuses provide no pathway to lawful permanent residence.
Federal and State Enforcement Strategies
Although the federal government has continually reasserted its supremacy in immigration enforcement, there have been efforts to leverage state and local encounters with immigrants to assist enforcement strategies. For instance, in 1996 the Illegal Immigration Reform and Immigration Responsibility Act authorized formal cooperation between federal and state and local authorities, including the 287(g)9 agreements in which state and local police receive federal training for, and are authorized to perform, immigration functions. Even at the program’s peak, the 287(g) Program was very limited in scope, and under the Obama administration attention initially shifted from the 287(g) Program to the Secure Communities Program.
Secure Communities took advantage of state and local enforcement resources by allowing state and local police to routinely share their arrest data with the Federal Bureau of Investigation, which in turn shared those data with the Department of Homeland Security (DHS) so it could be compared with DHS databases to determine if a person in state or local custody is removable. President Obama discontinued the program in a November 2014 Executive action, replacing it with the Priority Enforcement Program, which is intended to target only those who have been convicted of certain serious crimes or who pose a danger to national security. This Execu-
9 This descriptor is a shorthand reference to the Immigration and Nationality Act, Section 287(g), codified at 8 U.S.C. § 1357(g).
tive action, which took effect on January 5, 2015, targets enforcement to “noncitizens who have been convicted of serious crimes, are threats to public safety, are recent illegal entrants, or have violated recent deportation orders” (Rosenblum, 2015). Although the data-sharing aspects of Secure Communities continue, DHS states that it will only seek notification about potentially removable persons rather than all undocumented people, except in special circumstances. For people who were already in detention before the Priority Enforcement Program (which replaced Secure Communities) went into effect on July 1, 2015, if Immigration and Customs Enforcement deems the case to be nonpriority, they might be released. If they are already in deportation proceedings, other factors come into play, such as the availability of legal counsel, in determining whether the case proceeds or is terminated (and the deportation stopped). As an Executive action, these changes also can change with a new president. Many aspects of this new policy are still unclear as of the time of this report.
The Supreme Court’s decision in Arizona v. United States (Table 2-2) leaves open the realm of informal federal-state cooperation. In many areas of law enforcement, the federal government depends on state and local police to advance its objectives because the federal government does not have the resources or capacity to fully enforce its own laws. DHS depends on informal information-sharing from states and localities to identify removable noncitizens—a dependence that has become all the more significant as the grounds for removal have expanded (Motomura, 2012). In addition, federal law does require the federal government to accept inquiries from state and local police into the immigration status of those in police custody (8 U.S.C. § 1373(b)). The law therefore effectively requires the federal government to receive information from police that could prompt the initiation of removal.
Arizona v. United States also left in place SB 1070’s Section 2(B), which requires police to inquire into the immigration status of anyone with whom they come into contact if there is reason to believe they are in the country unlawfully. Currently six states (Alabama, Arizona, Georgia, Indiana, South Carolina, and Utah) have passed laws that allow police to question individuals about their legal status. Several studies (Ayón and Becerra, 2013; Santos and Menjívar, 2013; Santos et al., 2013; Toomey et al., 2014) indicate that these SB 1070–inspired policies have had deleterious effects on Latino immigrant families’ well-being. However, enthusiasm for enforcement may be on the wane, and many local police departments have taken a pragmatic approach to the law in order to limit its impact on immigrant communities (Trevizo and Brousseau, 2014). Meanwhile, the Supreme Court explicitly left open the possibility for lawsuits alleging civil rights and other constitutional violations. Alabama and South Carolina appear to have abandoned their own analogues to SB 1070, Section 2(B), in the wake of federal lawsuits.
Today, eagerness for enforcement in places like Arizona contrasts with resistance to enforcement elsewhere. By 2013, at least 70 jurisdictions nationwide had adopted ordinances that restrained public officials from inquiring into the immigration status of persons they encounter (Elias, 2013, p. 726), in the tradition of the sanctuary movement of the 1980s, when churches and some localities sought to shelter Central American refugees from removal (Rodríguez, 2008, pp. 600-605). The most recent and arguably most powerful manifestation of enforcement resistance has taken the form of so-called anti-detainer ordinances (Graber, 2012). Three states—California, Connecticut, and Colorado—and numerous cities, such as Chicago and Los Angeles, have adopted ordinances or statutes (sometimes known as TRUST Acts) that constrain the circumstances under which local police may hold persons pursuant to a detainer, usually permitting acquiescence to the federal request only in the case of serious offenses or where an outstanding order of removal exists (National Immigration Law Center, 2012).
Although some localities have treated detainers as mandatory, existing Supreme Court federalism precedents (e.g., Printz v. United States, 521 U.S. 898, 1997) likely would prevent DHS from attempting to make them so. And two federal district courts recently have issued opinions placing constitutional limits on detainers, which helped spur the changes to Secure Communities.10 It is currently unclear whether these anti-detainer ordinances have become obsolete or will be revised to prohibit even notification in response to the changes to Secure Communities. As of the time this report was completed, several efforts were under way in the U.S. Senate to limit the power of municipalities to pass anti-detainer ordinances, which further clouds the future for enforcement resistance.
Other Forms of Autonomous State Action
In addition to the ongoing involvement of local law enforcement bureaucracies in immigration enforcement, recent legal developments have left some space for states and localities to adopt other enforcement measures.11
10 See Jeh Johnson’s memo in response to President Obama’s Executive action. Available: http://www.dhs.gov/sites/default/files/publications/14_1120_memo_secure_communities.pdf [October 2015].
11 States may also use their own criminal laws in ways that destabilize immigrant communities. Prosecutors in Maricopa County, Arizona, for example, have used the state’s anti-smuggling law to crack down not only on those who transport unauthorized immigrants but on unauthorized immigrants themselves, for self-smuggling (Eagly, 2011, p. 1760). In 2006, voters in Arizona adopted a referendum categorically denying bail to unauthorized immigrants charged with certain crimes, including identity theft, sexual assault, and murder. Although
First, in 2011 the Supreme Court upheld Arizona’s Legal Arizona Worker’s Act (Table 2-2), which threatens to take away the business licenses of employers who hire unauthorized workers and requires employers to use the federal E-Verify database to determine whether a prospective employee is authorized to work. The statute is essentially unenforced (Gans, 2008, p. 14; Santa Cruz, 2010), but there is evidence suggesting that its existence prompted some immigrant workers to relocate to another state (Bohn et al., 2014; Lofstrom and Bohn, 2011) and may have motivated employers to fire or refuse to hire immigrants and even certain ethnic minorities (Menjívar, 2013) to avoid penalties. However, it did little to help the labor market outcomes of native low-skilled workers (Bohn et al., 2015) and might have increased immigrant workers’ perception of vulnerability, pushing them further underground (Menjívar and Enchautegui, 2015).
Second, the federal courts have divided over whether laws that require landlords to verify immigration status and prohibit them from renting to unauthorized immigrants are preempted by Arizona v. United States, and the Supreme Court has declined to review these cases, leaving the issue undecided. These ordinances are arguably the most significant assaults on immigrants’ presence enacted to date because they threaten the most serious human rights consequences. But few localities have adopted them, and their greatest impact may be not the imposition of homelessness but the potential displacement of immigrants to other locales—with corresponding economic consequences for the communities left behind (Capps et al., 2011; Singer et al., 2009). More research is needed on the actual effects of these laws on immigrant integration and mobility.
Finally, the latest aspect of federal-state contestation has arisen in response to DACA. As of early 2015, one state—Nebraska—still refuses to issue drivers’ licenses to DACA recipients despite their lawful presence (although they still lack formal lawful status). Although the vast majority of states have moved quickly to make licenses available, this development reflects the persistence of the debate over the social position of undocumented immigrations. The Ninth Circuit Court of Appeals used the preemption framework to block Arizona’s law, on the theory that denying them licenses would significantly undermine their ability to work and therefore conflict with federal policy that authorized their employment (Arizona DREAM Act Coalition v. Brewer, 757 F.3d 1053, 9th Cir. 2014).
an 11-member panel of the Ninth Circuit recently struck down that provision as “excessive” and therefore a violation of substantive due process, (Lopez-Valenzuela v. Arpaio, 2014 WL 5151625 [9th Cir. Oct. 15, 2014]), similar provisions exist in at least three other states.
Even as the federal government has moved to affirm its supremacy over immigration enforcement and limited the role of states in enforcement actions, it has devolved to states and localities the responsibility for decisions about access to various public benefits, while relying on state and local agencies and nongovernmental organizations to carry out its affirmative integrative programs. Integration federalism therefore reverses the burden of responsibility, decentralizing decisions about access to social goods that aid integration and leaving most of the affirmative integration work to institutions removed from direct federal control.
Affirmative Integration Programs
Unlike other countries with large immigrant populations, the United States has not constructed a centralized immigrant integration system, and “no single federal entity has been designated to lead the creation, implementation, and coordination of a national immigrant integration capability,” (U.S. Government Accountability Office, 2011, p. 25). Instead, efforts to provide support for immigrants’ adjustment to life in the United States are largely the province of state and local bureaucracies and the private sector, with limited federal support in the form of grants and information dissemination. (See Chapter 4 for more details on federal integration efforts for naturalization and civic inclusion.)
The federal government does maintain a variety of grant programs administered by its various agencies and designed to provide technical and cash assistance to service providers that work with immigrants, as well as to provide support for civics education and preparation for naturalization. And U.S. Citizenship and Immigration Services provide basic information to assist in the naturalization process. The panel discusses other federal integration programs below.
Federal Integration Strategies
The most robust federal integration program is specifically targeted toward refugees. The Bureau of Population, Refugees, and Migration within the State Department matches refugees with nongovernmental organizations under contract to provide housing, furnishings, food, and other essential services for 1 to 3 months. The Office of Refugee Resettlement within the Department of Health and Human Services also handles transitional assistance for “temporarily dependent refugees,” and the Immigration and Nationality Act gives the Director of the Office of Refugee Resettlement the authority to provide cash, medical assistance, and social service assistance
to refugees (Immigration and Nationality Act, Sections 412(c) and 412(e), codified at [8 USC 1522]). These benefits usually are run through state agencies and are designed to assist refugees who are ineligible for federal assistance programs (Bruno, 2011, p. 9). The State Department also strives to resettle refugees where they have families or where relevant ethnic communities exist, hence some of the unexpected settlement patterns of specific groups of immigrants (Patrick, 2004). The implications of these programs for refugees and asylees are discussed further in Chapter 3.
For most immigrants, however, state and local institutions and the private sector perform the bulk of what would be considered traditional affirmative integration functions, such as language and civics education, job training, and assistance accessing public benefits and institutions. This is in sharp contrast to most other immigrant-receiving countries such as Canada, Australia, and western European countries, which have more comprehensive government-run programs for immigrant integration.12 Even the federal government’s own integration policies rely heavily on state and local governments to implement and run these programs. Scholars and advocates for reform have noted and criticized the lack of federal coordination and leadership concerning immigrant integration (Bloemraad and De Graauw, 2011, pp. 10-11; Catholic Legal Immigration Network, Inc., 2007; Kerwin et al., 2011, pp. 6-9).
As noted in Chapter 1, President Obama’s White House Task Force on New Americans recently undertook a review of immigration integration efforts across federal agencies in order to identify goals to strengthen integration and build “strong and welcoming communities” (White House Task Force on New Americans, 2015, p. 2). The report makes a series of recommendations to agencies to promote integration but does not call for a more centralized immigrant integration system. Federalizing the integration process ultimately requires a clear definition of what integration means and how it should be measured, or at least identification of those characteristics of integration that can be encouraged through government action. Whether greater centralization would promote better integration outcomes than the status quo also depends on which jurisdiction’s programs are being evaluated; as discussed below, offices in states such as Illinois and New York may offer far more tailored and extensive integration assistance than the federal government could provide.
12 While systematic studies comparing naturalization programs across countries have been done (Bloemraad, 2006), the panel did not find systematic cross-country studies comparing centralized as opposed to localized programs of immigrant integration. This area needs further research.
Adult Education and Workforce Training
In addition to civics and naturalization education efforts that are explicitly aimed at preparing immigrants for their potential roles as American citizens, the federal government plays a strong role in integration education via adult education and workforce training. The principal vehicle of support for adult education and training has been the Workforce Innovation and Opportunity Act of 201413 (WIOA) and its predecessor, the Workforce Investment Act of 1998. The two principal titles of interest here are Title I, which focuses on the provision of employment and training services for adults, and Title II,14 which sets out the law’s adult education and literacy programs: specifically adult basic education, adult secondary education, and English as a second language (ESL).
As discussed in Chapter 1, the large number of immigrants with low levels of education and/or limited English proficiency is not a new phenomenon or even a new cause for concern. What is relatively new is legislation explicitly designed to address these issues. Today, several pertinent trends underscore the needs of immigrant and limited English proficient (LEP)15 adults for adult education and workforce training.
One such trend is the sustained concentration of immigrant workers in low-skill jobs: 57 percent in 2013. The shares of immigrant workers in middle- and high-skilled jobs in 2013 were 19 and 24 percent respectively.16 Second, while the literacy, numeracy, and technological skills of all U.S. adults trail those of adults in many OECD countries surveyed by the Programme for the International Assessment of Adult Skills (PIAAC), immigrants’ skills lagged those of the native-born. Immigrants made up 15 percent of the U.S. adult population in 2012 but were one-third of low-skilled adults according to the PIAAC, faring worse on this measure than immigrants in most other countries surveyed (Office of Career, Technical, and Adult Education 2015).17 (The likely reason for this situation is that many immigrants to the United States are not as highly selected as immigrants to other receiving countries and thus contain more low-skilled people.) Third, 2013 American Community Survey data show that close
13 Public Law 113-128 (2014), codified under USC 113.
14 Since 1998, Title II of the Workforce Investment Act has been known as the Adult Education and Family Literacy Act.
15 The term “limited English proficient” refers to persons ages 5 and older who reported speaking English “not at all,” “not well,” or “well” on the American Community Survey questionnaire. Individuals who reported speaking only English or speaking English “very well” are considered proficient in English.
16 Analysis by Michael Fix and Jeanne Batalova, Migration Policy Institute, of the 2000 Census and 2007, 2010, and 2013 American Community Survey (ACS) data.
to half (46%) of all full-time immigrant workers in the United States were LEP, while about a quarter of immigrant workers (23%) were low LEP—that is, they spoke little if any English.18
Fourth, higher levels of education attainment are no guarantee of literacy in English. According to the PIAAC, 22 percent of natives and 54 percent of immigrants with college degrees scored “below proficient” in English literacy (Batalova and Fix, 2015).
Adult Education Since the 18th century, educating adults and integrating newcomers have often been mutually reinforcing national and state policy objectives (Eyre, 2013). States created evening schools in the late 19th and early 20th centuries to provide language classes to new migrants, and the 1918 Immigration Act provided federal assistance to schools to offer English language, history, government, and citizenship classes to promote naturalization (Eyre, 2013). Since the 1960s “War on Poverty” and the 1964 enactment of the Economic Opportunity Act (Public Law 88-52), the federal government has provided substantial support to states to provide ESL training under the nation’s adult basic education and workforce development law (McHugh et al., 2007). As more than 40 percent of the 1.6 million enrollees in adult education supported in part by federal funds were in ESL classes in 2013, it could be argued that federal and state support for these programs represents an often-overlooked cornerstone of national immigrant integration policy. State financial contributions to adult education, and presumably to ESL, vary widely. In California, for example, roughly 20 percent of overall spending on adult education comes from federal funds; in Texas the share is 75 percent. States also vary in terms of the number and shares of adult English learners enrolled in ESL classes and in the access states provide to adult education programs for undocumented immigrants (e.g., Arizona and Georgia ban their enrollment).
The economic returns to immigrants from learning their receiving country’s language have been widely studied both in the United States and internationally (Chiswick and Miller, 2008, 2009, 2010). For instance, data from the 2001 Australian Census indicated that the earnings of immigrants who were proficient in the destination country language were 15 percent higher than those who were not proficient (Chiswick and Miller, 2008). And other studies have found that LEP high-skilled immigrants were twice as likely to work in unskilled jobs as those with equivalent skills who were English proficient (e.g., Wilson, 2013). (Chapter 7 discusses this topic further.)
Several trends in ESL education are critical to immigrant integration.
18 Michael Fix and Jeanne Batalova, Migration Policy Institute, of 2013 American Community Survey.
First is the wide but declining reach of ESL programs funded under Title II of the WIOA. In program year 1999-2000, states enrolled 1.1 million adults in ESL classes, representing 38 percent of all students enrolled in adult education classes supported in part with federal funds. By program year 2013-2014, the number had fallen to 667,000 enrollees. ESL enrollees, however, represented a rising share of all adult education students: 42 percent in program year 2013-2014.19
Second, adult education for all adults—but especially for those with limited English skills—typically proceeds sequentially from English-language learning to obtaining a secondary-education credential (e.g., passing the General Education Development test), and then to postsecondary professional credentials or postsecondary education. This long, attenuated process often does not match the time and economic pressures many low-income adult immigrants experience today, making persistence and progress in ESL classes and low transfer rates from adult secondary education to postsecondary education a source of abiding policy concern. According to the most recent data, only 46 percent of adults in federally supported ESL programs completed the level in which they enrolled; 54 percent “separated before they completed” or “remained within level.”20 Commonly cited barriers to persistence and progress for low-wage immigrants include work conflicts and transportation and child care issues.
Workforce Training As noted above, the federal government’s current principal vehicle for funding workforce training programs is the WIOA. Title I of that new law sets out the federal government’s core programs in skills development, including employment and training for adults. While LEP individuals—many of whom are immigrants—have been a central focus of language and literacy programs, these populations historically were underrepresented in workforce training programs receiving support under the predecessor to the WIOA, the Workforce Investment Act. Despite the fact that LEP workers make up 35 percent of all workers lacking a high school degree, they represented just 3 percent of those receiving Title I services in 2012.
Implementation of the new workforce act (the WIOA) may expand ser-
19 Migration Policy Institute tabulation of data for the 50 U.S. states and the District of Columbia from the U.S. Department of Education, Office of Vocational and Adult Education/ Division of Adult Education and Literacy, National Reporting System: “State Enrollment by Program Type (ABE, ESL, ASE): All States,” program year 1999-2000 and 2013-2014. See https://wdcrobcolp01.ed.gov/CFAPPS/OVAE/NRS/reports/ [October 2015].
20 Migration Policy Institute tabulation of data from U.S. Department of Education, Office of Career Technical, and Adult Education, National Reporting System: “Educational Gains and Attendance by Educational Functioning Level: All Regions,” program year 2013-2014. See https://wdcrobcolp01.ed.gov/CFAPPS/OVAE/NRS/reports/ [October 2015].
vices to LEP adults and to immigrants, since this law’s priorities for service prominently include “individuals who are English learners, individuals who have low levels of literacy, and individuals facing substantial cultural barriers” (Bird et al., 2015). The WIOA also adjusts state incentives in ways that may provide more of an incentive to serve populations that have low language and literacy skills. And the WIOA authorizes states to tie basic skills and workforce training together in ways that may make the credential attainment process less attenuated for LEP participants starting in ESL programs. However, the WIOA was not supported by additional funding, so these shifts will have to be initiated by states without new resources from the federal level.
Evaluation of Workforce Preparation Programs There have been few systematic studies in the United States of the impact of job training programs for LEP individuals and immigrants, in contrast to many other developed countries where both integration initiatives and their systematic evaluation are more common (Thomsen et al., 2013). One demonstration program was administered by the San Jose Center for Employment Training in the 1980s and 1990s. That program, which enrolled a large share of Hispanics, many of whom were LEP, integrated job training and English-language skills training. It produced “large and lasting impacts” according to two evaluations that employed random assignment evaluation methodologies (Wrigley et al., 2003).
Another more recent demonstration and evaluation was funded by the Department of Labor and examined workforce preparation programs’ implementation and short-term outcomes at five demonstration sites. In general, English language proficiency increased but employment outcomes were mixed. For example, in Dallas, Texas, participants with follow-up data available (only 19% of the sample) saw a slight increase in wages, while at the remaining four sites, the impact on earnings was either not measured properly or the sample size was too small to generate statistically significant inferences (Grady and Coffey, 2009).
Perhaps the most carefully evaluated education and training program targeted in part to LEP populations has been Washington State’s Integrated Basic Education and Skills Training (I-BEST) model. The model, which was created and introduced by the state’s technical and community college system, combines adult education and college-level workforce training coursework. I-BEST involves co-teaching by basic skills faculty working with professional-technical faculty. It promotes integrated, contextualized language and work skills and takes into account learners’ schedules and child care constraints. I-BEST has shown success in helping ESL and adult basic education students reach the goals of earning college credits and obtaining short-term credentials, as well as earning higher wages (Jenkins
et al., 2009; Washington State Board for Community and Technical Colleges, 2012a, 2012b). Given the importance of these training programs for integration, best practices for such programs could be identified by conducting and compiling more evaluations like those conducted for the I-BEST Program in Washington State.
State and Local Integration Efforts
States and localities historically have been the public sector leaders in devising and implementing affirmative integration measures. In some cases, these measures are in tension with federal law and enforcement priorities, as discussed above. Here the panel examines how states and localities have responded to the presence and interests of undocumented immigrants. We then highlight some contemporary examples of more generally applicable state and local integration strategies.
Integrating Undocumented Immigrants Both Republican- and Democratic-leaning states have adopted laws that permit students who are undocumented immigrants to qualify for in-state tuition rates at public colleges and universities (20 states as of early 2015). Meanwhile, five states explicitly deny undocumented immigrants in-state tuition. And although Congress, through the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), made undocumented immigrants ineligible for nonemergency state and local public benefits in 1996, it also authorized states to extend such benefits as long as they adopted laws that “affirmatively” provided for eligibility (Public Law 104-193, 110 State 2105, s. 411). Some states have enacted laws providing medical benefits, funded by the state and through the State Children’s Health Insurance Program, to various categories of immigrants, including those granted deferred action (Mitnik and Halpern-Finnerty, 2010, p. 67).
Among the recent integrative strategies for undocumented immigrants are efforts to provide them with some form of identification. By 2015, 10 states and the District of Columbia had enacted laws making undocumented immigrants eligible for driver’s licenses. Some local jurisdictions have complemented these efforts by issuing municipal identification cards, an identity document that can facilitate a range of activities that enhance integration, such as opening a bank account, signing a lease, and accessing municipal services such as hospitals and libraries (Center for Popular Democracy, 2013, pp. 49-51; de Graauw, 2014).
A significant potential limitation to the integrative value of driver’s licenses and municipal identifications is that they “mark” undocumented immigrants. In the case of driver’s licenses, Section 202 of the REAL ID Act of 2005 sets out uniform standards state licenses must meet in order to
serve federal identification purposes (49 U.S.C. § 30301). A person must have a lawful immigration status in order to qualify for a fully compliant license, and states must somehow distinguish between licenses they issue that are not valid for federal purposes and those that are. As a result, in some jurisdictions the driver’s licenses issued to undocumented immigrants vary in appearance from the standard license (National Immigration Law Center, 2013, p. 5). To counter this, officials in cities such as Los Angeles and New York have attempted to make municipal ID cards appealing to all city residents, including by attaching benefits such as museum entries to them (Center for Popular Democracy, 2013, p 19).
Finally, California has perhaps gone the furthest of any state with respect to immigrant integration. Overall, California has removed many barriers to education and employment for unauthorized immigrants. In addition to allowing in-state tuition and state financial aid to undocumented immigrants, it has also passed laws forbidding local landlord ordinances and mandates on the use of E-Verify by localities (Gulasekaram and Ramakrishnan, 2015). The state also allows undocumented immigrants to practice law and has mandated that all professional licensing boards in California consider applicants regardless of their immigration status (Ramakrishnan and Colbern, 2015). However, other state and local efforts at immigrant integration in California, such as allowing lawful permanent residents to serve on juries and allowing noncitizen parents to vote in school board elections, have failed to be enacted (Ramakrishnan and Colbern, 2015).
In New York, legislation proposed in 2014 that aims to create a form of state citizenship allowing all immigrants to vote in state elections, hold state office, and seek the protection of all state laws is unlikely to pass the legislature. While particular states are pushing further than ever before on immigrant integration, they still fall shy of the high-water mark set in the mid-1800s, when many states offered voting rights to certain noncitizens in state and federal elections (Raskin, 1993).
The efforts by state and local governments to facilitate the integration of both legal status and undocumented immigrants have yet to be systematically studied, so the panel cannot conclude whether they make a difference in the long-term integration of immigrants. The variation by state and locality provides an opportunity to undertake studies of the efficacy of different approaches to integration in the future.
Integration Agencies and Task Forces Numerous cities and states have created agencies, task forces, commissions, and other programs to promote immigrant integration. These programs vary widely in scope, but they generally involve “traditional” affirmative integration assistance, such as
language and civics education, dissemination of financial services information, and assistance with the naturalization process (Rodriguez, 2014).
The states with the most developed task force and agency frameworks include Hawaii, Illinois, Maryland, Massachusetts, Michigan, New York, and Washington. The New York City Mayor’s Office of Immigrants Affairs, founded in 1984, works with community-based organization and city agencies to “promote the well-being of immigrant communities.”21 During his tenure, Mayor Michael Bloomberg signed numerous executive orders in conjunction with this office, including orders that made city services accessible to all immigrants regardless of status, established protections from various forms of fraud, strengthened language access services for local residents seeking health and human services, and established centralized language access services for the city (Waters and Kasinitz, 2013). These orders provide a blueprint for what other localities might accomplish, given the scope of municipal government.
The Devolution of Public Benefits Determination to States and Localities
The law determining immigrants’ access to public benefits is complex and governed by both legislation and jurisprudence. While federal laws have given states and localities permission to determine who accesses various benefits, the Supreme Court has handed down decisions sometimes prohibiting states from blocking access and at other times granting states leeway in determining who is eligible for these public goods (Table 2-2).
For instance, in the 1971 ruling on Graham v. Richardson, the Supreme Court invalidated state welfare schemes that barred certain LPR holders from receiving public benefits, while making it clear that any distinctions drawn between citizens and those with LPR status by state and local governments would be subjected to heightened review under the Fourteenth Amendment’s Equal Protection Clause (Gulasekaram and Ramakrishnan, 2015; Rodriguez, 2014). However, in De Cana v. Bica (1976) the court ruled that the protections afforded LPR status in Graham v. Richardson neither extended to undocumented immigrants nor affected states’ regulation of employment (Gulasekaram and Ramakrishnan, 2015). Then in Plyler v. Doe (1982), the court ruled that state and local governments could not deny undocumented children access to public education. Most recently, the court’s ruling on the challenge to Arizona’s SB 1070 substantially curtailed but did not eliminate state and local authority to enact laws or policies that amount to immigration regulation (Martin, 2012; Rodriguez, 2014).
Meanwhile, the PRWORA, passed by Congress in 1996, substantially
restricted even LPRs’ access to means-tested benefits.22 The PRWORA also devolved authority to state governments to determine whether LPRs and other “qualified aliens” should have access to federally funded state-run programs such as Temporary Assistance to Needy Families and Medicaid, as well as to state-funded benefits (Rodriguez, 2014). Many states reacted to these federal restrictions by providing state-funded programs (Borjas, 2002; Brown, 2013). Thus the devolution of public benefits and the decision over which immigrants can access these benefits has led to a patchwork system across the states in which immigrants’ integration prospects are highly dependent on immigrants’ status and geographic location.
Although courts and commentators have traditionally characterized immigration as an exclusively federal function, states and localities have been active participants throughout U.S. history in managing the consequences of immigration. The frameworks of legal status and the power the federal government wields to shape the terms and conditions of immigrant presence profoundly inform immigrants’ prospect for integration by providing anchors of varying degrees of stability in the United States.
Conclusion 2-1 Three important legal and institutional developments of the past 30 years have implications for integration: (1) the proliferation of immigration statuses that provide different degrees of permanence and security and fall into four categories: permanent, temporary, discretionary, and undocumented; (2) the complex and at times contradictory policies and laws linked to those statuses; and (3) the broadening of grounds for removal and constraints on relief, with the related centrality of Executive action to immigrants’ prospects.
Conclusion 2-2 The 11.3 million undocumented immigrants in the United States currently have few legal protections. Undocumented status is inherently unstable because undocumented immigrants are at constant risk of deportation, which poses significant barriers to immigrant integration.
In addition, federally supported adult education has proven to be a cornerstone of what can be seen as a rather skeletal federal immigrant integration policy. Yet LEP adults are generally underserved in federally
22 Some of these restrictions have since been relaxed (Wasem, 2014, pp. 1-3), although most legal challenges to provisions of the law have failed, on the ground that they are rational exercises of Congress’s power to regulate immigration (e.g., City of Chicago v. Shalala, 1996).
supported workforce development programs, and it remains to be seen whether the WIOA will expand the reach of workforce programs more widely to immigrant and LEP populations. Meanwhile, state and local efforts simultaneously challenge the complex balancing acts the federal government has struck and complement federal regulation by employing state and local institutions in the day-to-day work of integration. This form of integrative federalism leads to geographic variation in immigrants’ integration prospects, with some states and localities providing more opportunities than others.
Conclusion 2-3 The patchwork of integration policies has not been systematically studied to determine which programs at the federal, state, or local level work best and with which populations. Rigorous evaluations of these programs could provide guidance for any attempt to institute new programs or to scale up existing programs to a higher level.
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