Friday, June 10, 2011

CA: SCOTUS declines immigrant tuition case

The US Supreme Court refused on Monday to examine a California law that allows illegal immigrants to attend state colleges and universities at preferential in-state tuition rates that are roughly one-third the cost charged to students from out-of-state.

Under the state law any individual – regardless of immigration status – who graduates from a California high school after attending for three years qualifies for the same tuition discount offered to California residents.

The discounts apply at all public universities in the state, including the system’s most prestigious and highly-competitive institutions.

Eight other states have enacted similar provisions, offering illegal immigrants in those states the same in-state tuition discount offered to state residents. Those states are Illinois, Kansas, New Mexico, Nebraska, New York, Texas, Utah, and Washington. Oklahoma passed a similar law, but later repealed it.

A group of out-of-state students filed a lawsuit challenging the California law. The suit says the state measure conflicts with and is preempted by a 1996 federal immigration statute that forbids states from offering resident tuition rates to any illegal immigrant unless the state offers the same preferential tuition rates to all US citizens regardless of their state residency.

A state judge dismissed the suit, but a California appeals court ruled that the state provision was preempted by the federal immigration law.

The California Supreme Court reversed that decision, ruling that the state law did not confer a benefit on illegal immigrants based on their residence in California.

The state law based the preferential tuition award on criteria other than the student’s state of residence, the state high court said. The in-state tuition is granted on the basis of attendance at and graduation from a California high school. Although most graduates from California schools do, in fact, reside in California, the high court reasoned that not all graduates are residents.

Minor children of out-of-state parents who attend boarding schools in California qualify for resident tuition rates. So do students who live in an adjoining state or country and attend high school in California.

The state supreme court said if Congress intended to impose a ban on illegal immigrants receiving in-state tuition it could have done so. Instead, Congress restricted only the use of residence as a criterion, the court said, but it did not bar states from identifying other criteria to award the in-state discounts.

In urging the US Supreme Court to take up the case, Kris Kobach, a lawyer for the students, said the congressional measure is aimed at blocking the provision of benefits to illegal immigrants. He said Congress wanted to reduce any incentive for undocumented immigrants to enter or remain in the country unlawfully.

“Congress was concerned about states offering illegal aliens a particular benefit – resident tuition rates or the functional equivalent,” he wrote in his brief. “California spends in excess of $208 million each year subsidizing the tuition of illegal aliens under the [California law],” he said.

Julie Weng-Gutierrez of the California attorney general’s office urged the justices to dismiss the appeal, saying the out-of-state students lacked the necessary legal standing to bring the case. She said their lawsuit was aimed at fighting a generalized grievance over the state’s alleged noncompliance with federal law rather than a particularized and personal injury the resolution of which would directly benefit them. Even if they won their suit, a favorable ruling would not reduce their tuition rates, she wrote.

Ms. Weng-Gutierrez added that there was no disagreement among the circuit courts of appeal on the issue of in-state tuition rates for illegal immigrants necessitating the high court’s intervention.

She noted in her brief that 500 children who are residents of an adjoining state or country are attending California high schools. She added that 5,000 to 6,000 children of undocumented immigrants graduate each year from California high schools.

Ethan Schulman, a lawyer for the regents of the University of California, also urged the Supreme Court to dismiss the appeal. He said the California legislature did not defy Congress in passing the in-state tuition law. State lawmakers “carefully tailored that statute to comply with federal law,” he said.

The California law’s criteria (graduation from a California high school and three years attendance) are not the same as residence, nor are they a de facto or surrogate residency requirement, Mr. Schulman wrote, echoing the California Supreme Court decision. The state court opinion continues: “Congress specifically referred to residence – not some form of surrogate for residence – as the prohibited basis for granting unlawful aliens a postsecondary education benefit.”


TX: Perry adds immigration items to special session

Gov. Rick Perry added immigration legislation to the special session's agenda on Tuesday, including a measure that would remove local law enforcement agencies' ability to make immigration violations a lower priority.

Other items he added include how local police use the federal Secure Communities program to check people's immigration status when they are arrested, and checking an applicant's immigration status before issuing driver's licenses and personal identification certificates, according to a statement from Perry.

The governor had named similar items as emergency legislation in the regular session, but the bills failed to reach the full Senate for a vote.

Opponents say the measures will lead to racial profiling and the harassment of minorities.

Texas Democrats vehemently oppose all the measures and successfully used parliamentary procedure to stymie them until after the deadline passed for passage during the regular session. In a special session, there are fewer opportunities to slow a bill down. Republicans have a 101-49 supermajority in the House and a 19-12 majority in the Senate, making it easy for them to pass the measures.

Proponents call places where police do not actively enforce federal immigration law "sanctuary cities," a moniker local officials reject.

"Texas owes it to the brave law enforcement officials, who put their lives on the line every day to protect our families and communities, to give them the discretion they need to adequately do their jobs," Perry said. "Abolishing sanctuary cities in Texas, using the federal Secure Communities program and ensuring that only individuals who are here legally can obtain a valid Texas driver's license sends a clear message that Texas will not turn a blind eye to those breaking our laws."

The bill would forbid policymakers from telling law enforcement officers not to give immigration matters the same priority as other crimes. The bill currently filed in the legislature would allow a police officer to ask about someone's immigration status whenever they are being questioned about any kind of violation.

If a police officer or a citizen feels like an agency is not fully pursuing immigration violators, that person can ask the state attorney general to file suit. Agencies are also subject to litigation if someone believes officers are racially profiling people, creating what critics call a no-win situation.

The vast majority of police chiefs oppose the measure, which they say would prevent them from setting their own law enforcement priorities.

"The police chiefs and sheriffs have said this would diminish their ability in community policing because this would create distrust in the community and keep people from coming forth with information that is needed," said Sen. Leticia Van de Putte, the Democratic leader in the Senate. "I think it's bad public policy."

The federal Secure Communities program allows local jails to check the immigration status of suspects when they are booked. All of Texas' 254 counties already use the program, but Perry would like to see it expanded to include city jails. The Obama administration has said it wants the program to be nationwide by 2013.

Critics say the program busies itself rounding up low-level criminals and discourages crime victims from coming forward, such as a domestic violence victim who won't call police for fear that a spouse will be deported.

Van de Putte also questions the driver's license measure, which would require all applicants to prove their citizenship status not just on the initial application, but for renewals and replacements as well.


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