How Governors and Attorneys General Can Use Their Authority to Support and Protect Immigrants

FLEXING THEIR EXECUTIVE MUSCLE
How Governors and Attorneys General Can Use Their Authority to Support and Protect Immigrants

Last updated DECEMBER 3, 2018

At the federal level, the Trump administration has launched unprecedented attacks on immigrants’ ability to live, work, and remain in the United States. Largely unchecked by Congress, the administration has demonized and dehumanized immigrants. It is up to a state’s political leaders — governors and attorneys general — to do what they can to ensure that all their state’s residents feel safe, secure, and valued.

Governors and attorneys general are well placed to meet this need. They have broad authority that gives them opportunities to protect immigrants living in their state. For example, as their state’s head executive, governors typically have powers that include signing and vetoing legislation, issuing executive orders, and creating boards and commissions.[1] Similarly, attorneys general have robust authority and may issue formal opinions or guidance to state agencies and introduce legislation, in addition to their significant powers to litigate on behalf of a state.[2]

Across the country, state executives are using their authority in creative ways. Discussed below are various options for enacting pro-immigrant policies, typically without the involvement of a legislature. Included also are hyperlinks to resources on each issue area.[3]

CONTENTS

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Limiting Local Entanglement with Federal Immigration Enforcement Efforts

Across the U.S., immigrants fear interactions with federal immigration authorities. Because of this fear, they are less willing to seek much-needed services or report crimes. If immigrants view all facets of government as a threat to their personal security, states cannot effectively serve these residents. In addition, state law enforcement entities are stretched more thinly when they divert resources to aid the federal government’s immigration machinery.

Recommendations

Governors should:

  • Prohibit U.S. Immigration and Customs Enforcement (ICE) arrests in state facilities without a judicial warrant or order.
  • Prohibit executive agencies, state police, and state corrections departments from honoring hold (detainer), notification, and transfer requests from federal immigration authorities.
  • Publicly support legislative attempts to codify high-quality anti-detainer policies.

Attorneys general should:

  • Create an immigrant assistance program to coordinate the provision of services offered by the attorney general’s office and other government agencies and provide policy recommendations.
  • Create and/or distribute existing know-your-rights resources to educate their state’s immigrant residents regarding their rights when interacting with federal law enforcement.
  • Issue guidance for local law enforcement that makes clear the legal concerns with detainers and emphasizes that they are not mandatory.
  • Join or file litigation on behalf of their state. File amicus briefs in support of litigation.

Examples

Additional Resources

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Universal Representation for Immigrants

Immigration detention has a dramatic impact on immigrants’ lives. Detained immigrants are often separated from their children, spouses, employment, and faith communities. Despite the life-shattering consequences of detention, immigrants have no right to being represented by a lawyer in their immigration cases. This reality challenges our fundamental sense of due process but also contributes to the inefficiency and injustice of immigration proceedings. Given the fact that the U.S. Department of Homeland Security (DHS) has expanded its deportation priorities drastically to include virtually any person in the U.S. without authorization — regardless of age, ties to the U.S., or other humanitarian factors — state executives can help protect their state residents’ rights of by investing in universal representation for the immigrants living in the state.

Recommendations

Governors should:

  • Include a fully funded universal representation program in the proposed budget. Make it a priority during the legislative fight over the budget.
  • Publicly support state legislation to create a fully funded universal representation program.
  • Publicly support local criminal justice reforms that limit extreme federal immigration consequences imposed on immigrants who have certain criminal convictions.

Attorneys general should:

  • Publicly support a fully funded universal representation program contained in a governor’s budget or in state legislation. Emphasize how universal representation will help meet the need for due process in our legal system.
  • Publicly support local criminal justice reforms that limit extreme federal immigration consequences imposed on immigrants who have certain criminal convictions.

Examples

Additional Resources

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Safe-Zone Policies: Schools, Hospitals and Clinics, Workplaces and Courts

Safe-zone policies help ensure that families feel safer when taking their children to school, seeking care from health clinics or hospitals, going to work, or securing other essential services. The policies, grounded in the mission and legal obligations of schools, clinics, and other entities, protect the rights of students, patients, and consumers. These policies empower immigrant families and improve access to crucial services, while helping schools, clinics, and other service providers carry out their mission in a way that protects all persons using their facilities.

Recommendations

Governors should:

  • Issue a comprehensive executive order and companion community education materials regarding the rights of immigrants to be safe and secure while in school, seeking health care or benefits, working, or when going to court.
  • Issue more specific guidance when useful (e.g., guidance regarding immigration enforcement at schools, in hospitals, at courts, etc.).
  • Support the efforts of local prosecutors, judges, and others who advocate for safe and secure courthouses.
  • Prohibit state agencies from asking individuals about their immigration status and from disclosing immigration data.
  • Establish a state commission that focuses on keeping immigrants (and their personal information) safe and secure.
  • Encourage and publicly support state agencies and departments that create high quality U visa protocols.

Attorneys general should:

  • Issue comprehensive guidance and companion community education materials regarding the rights of immigrants to be safe and secure while in school, seeking health care or benefits, working, or when going to court.
  • Issue more specific guidance when useful (e.g., guidance regarding immigration enforcement at schools, in hospitals, at courts, etc.).
  • Support the efforts of local prosecutors, judges, and others who advocate for safe and secure courthouses.

Examples

Additional Resources

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Welcoming Refugees and Protecting Religious Minorities

Unfortunately, states cannot isolate themselves completely from the dysfunctional and discriminatory rhetoric coming out of Washington, DC. Although many Americans embrace diversity in our nation and are outraged by the Trump administration’s Muslim ban, the U.S. Supreme Court allowed the third iteration of the ban to remain in place permanently. The combination of the president’s fear-mongering about Syrian refugees and Muslims and his discriminatory policies have consequences: anti-Muslim assaults have surpassed the 2001 level.[4] Therefore, governors and attorneys general must use their power to ensure that all of their state’s citizens feel welcome and protected.

Recommendations

Governors should:

  • Request increased funds in the proposed budget to fight discrimination and hate crimes — and make this a priority during the legislative deliberations over the budget.
  • Establish a state commission to study the impact of hate crimes in the state.
  • Issue statements and publicly welcome refugees to your state.
  • Encourage municipalities in their state to decline or phase out partnerships with DHS’s Countering Violent Extremism Taskforce and the FBI’s Joint Terrorism Taskforce.

Attorneys general should:

  • Create a rapid response team to more quickly and effectively deal with hate crimes.

Examples

Additional Resources

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Opposing the Proposed New Public Charge Rule and Protecting Immigrants’ Access to Health Care and Public Programs to Make Families Healthier and Stronger

Governors and attorneys general are uniquely positioned to push back on the Trump administration’s most recent major anti-immigrant policy attack. On October 10, 2018, the administration published a proposed new rule that would dramatically broaden the “public charge” test that has been a part of federal immigration law for decades. The new rule could force immigrant families to choose between being eligible for permanent lawful status and being able to access basic needs such as healthy food, safe housing, and health care. If finalized, the rule would chill access to critical programs that help immigrants and their families access health care, food, and other essentials. These programs have improved participants’ health, wellbeing, school success, and economic security. The proposal would make — and has already made — immigrant families afraid to seek programs that support basic needs. Given that one in four children have at least one immigrant parent, this issue touches millions, making it critical now and for our nation’s future. This proposal is part of a broader attack on immigrants and their families that sows fear and chills immigrants’ access to vital programs that make children, families, communities, and states as a whole stronger and healthier.

Recommendations

Governors should:

  • Submit public comments to oppose the proposed rule change.
  • Issue public statements opposing the proposed rule change.
  • Develop public messaging, webpages, and other forms of communication to inform immigrant communities about the latest policies on immigrant access to health care and other public programs.
  • Evaluate security of data in state program databases and clarify state confidentiality policies.
  • Develop mechanisms to track the chilling effects of the public charge rule proposal and other policies on immigrant access to programs administered by state agencies.
  • Understand and be able to communicate existing federal privacy protections in this arena.

Attorneys general should:

  • Submit public comments to oppose the proposed rule change and coordinate with other attorneys general on submitting comments and engaging in possible litigation.
  • Join litigation challenging the new public charge rule and file amicus briefs supporting other litigation.
  • Issue statements clarifying existing confidentiality protections for information about participants enrolled in public benefits.
  • Understand and be able communicate existing federal privacy protections in this arena.
  • Facilitate state residents’ ability to obtain high-quality counsel and advice on these issues.

Additional Resources

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NOTES

[1] See https://www.nga.org/consulting/powers-and-authority/#overview.

[2] See http://www.naag.org/naag/about_naag/faq/what_does_an_attorney_general_do.php.

[3] This document was written as a general resource for state attorneys general and governors (and their staffs) across the country. The authority of each state’s attorney general and governor varies. Nothing in this document should be read to suggest that state attorneys general or governors violate existing statutory mandates or the Model Rules of Professional Responsibility. Additionally, this document does not discuss the important role that attorneys general can play in litigating (or drafting amicus briefs) to protect the rights of immigrants. For example, in 2017, 16 attorneys general sued the president (https://on.ny.gov/2wIMu9R), the Department of Homeland Security (DHS), and others in response to the federal government’s recession of the Deferred Action for Childhood Arrivals (DACA) program.

[4] See http://www.pewresearch.org/fact-tank/2017/11/15/assaults-against-muslims-in-u-s-surpass-2001-level.

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