State Power Over Immigration Law

Continuing Legal Education Materials

GLC - Immigration Explainers.

[In February 2020, Professor Ava Ayers announced that she is transgender. This article has been edited to reflect her gender identity. Read more here.]

This summary of the Anderson program held on April 3, 2018, was written by Ava Ayers, the director of the Government Law Center, who organized and moderated the panel.

The purpose of the second Anderson program was to give an overview of some of the ways in which states and local governments have an impact on immigration law and policy. 

Ayers opened the program by explaining that there are at least four kinds of policy decisions that affect whether a jurisdiction might be deemed a "sanctuary":  whether to contribute their own law-enforcement resources to cooperate with federal investigations; whether to detain noncitizens at federal request; to what extent they will share information about noncitizens with the federal government; and to what extent they will grant physical access to state-controlled facilities, including courthouses.

The law governing each of these decisions is complicated.  Ayers distinguished between policies that attempt to obstruct or resist immigration enforcement and policies under which localities simply attempt to stay neutral.

Zainab Chaudhry, Assistant Solicitor General in the office of New York State Solicitor General Barbara Underwood, described the role of the New York Attorney General's office in immigration issues. 

Since children are constitutionally entitled to an education regardless of their immigration status, the office has worked to ensure access of immigrant children to education, including making sure that schools do not ask questions about immigration status.

Chaudhry also described the current Supreme Court litigation in Hawaii v. Trump, in which New York and other states challenged the Trump Administration's travel ban, focusing on the harms states suffered as a result of the ban. The case thus presents the question of states' standing to bring a lawsuit challenging federal immigration policies, an important issue that will have far-reaching implications for federal/state disputes in the future. 

New York has also led a multi-state coalition challenging the federal government's attempts to defund localities it identifies as "sanctuaries," and Chaudhry announced that the office would also be challenging census questions that ask about immigration status.

Barbara Weiner, Attorney Emeritus at the Empire Justice Center, described a federal proposal that has recently leaked to the press—one under which noncitizens' interactions with the states' public-benefits systems will have major implications for their ability to remain in the country.  Certain noncitizens who wish to enter the U.S. or to become permanent residents must show that they will not become a "public charge."  

The newly leaked proposal would dramatically expand the kinds of public benefits that make someone a "public charge" for immigration purposes to include food assistance, housing subsidies, and even tax credits.  It would thus dramatically affect the ways in which a state agency's provision of public benefits could have repercussions for the recipient's immigration status.

Gerard Wallace, the Director of New York State Kinship Navigator, brought to the panel his expertise on kinship care (children being raised by people other than their parents), and discussed what happens to children who are citizens but whose noncitizen parents are facing deportation. 

Planning for kinship care involves choosing what arrangement the parents would want; options include legal custody, legal guardianship, "informal custody" (in which the caregiver does not go to court), and parental powers of attorney.  Each has different implications for healthcare decision-making and other powers and responsibilities.  

By creating these ways in which noncitizens can plan for the care of their children in the event of deportation, New York State law has a profound impact on the lives of noncitizens and their family members.  As the panel discussion showed, this is just one of many ways in which states and localities play a profoundly important role in immigration law and policy.