Municipal IDs and State and Local Measures to Regularize the Lives of the Unauthorized

In the last decade, a growing number of US cities have implemented municipal identification cards (IDs). Both advocates and critics call municipal IDs “documenting the undocumented.”[1] IDs enable residents to access buildings and services, but are issued by municipalities rather than states.

Conceptually, municipal IDs —and other state and local measures to regularize the lives of the unauthorized and to prevent deportations — derive from the 1980s “sanctuary city” movement.[2] In 1979, Los Angeles was the first city to instruct local police not to determine the immigration status of residents.[3] In the 2000s, interfaith leaders founded the “New Sanctuary Movement” to protest US immigration enforcement policy.[4]

Today, with over 11 million US persons without immigration status,[5] and Congress unable or unwilling to pass immigration reform, cities and states are engaging in a “new new sanctuary movement.” The movement promotes human rights regardless of citizenship by enabling unauthorized residents to stay in their communities, access basic services, and regularize their lives.  Localities’ tools against federal immigration enforcement include “don’t ask don’t tell” policies for police,[6] and refusal to honor ICE detainer requests in certain cases.[7]

More affirmatively, localities’ tools for encouraging inclusion regardless of immigration status include education initiatives, such as in-state tuition and financial aid to DREAMers; reinstating noncitizen voting on local matters; Welcoming City initiatives; and state drivers’ licenses and municipal IDs for the undocumented. Cities providing municipal IDs now include Los Angeles, San Francisco, Richmond, and Oakland, CA; New Haven, CT; and Trenton, Asbury Park, and Monmouth County, NJ.[8] New York may follow, as its City Council introduced municipal ID legislation in April.[9]

Municipal IDs can legally help make cities safer, foster civic integration and participation, and benefit cities economically. A municipal ID can increase public safety by encouraging crime reporting and cooperation with police investigations. Lack of photo ID is generally a red flag to law enforcement of lack of immigration status. Unauthorized immigrants know this, and it understandably increases their reluctance to contact police or to report crimes.[10] By implication, municipal IDs will allow the unauthorized to interact with police without fear of deportation. Along these lines, immigrants stopped by police during investigations or for minor violations “should be issued a summons, not detained for lacking ID.”[11]

Municipal IDs also foster civic integration. IDs enable holders to receive services from city agencies, borrow library books, access medical clinics and financial services, pick up packages, and cash checks.[12] For example, New York’s proposed Section 3-137 provides that “[a]ll city agencies shall accept such card as proof of identity and residency for access to city services,” and that the city shall “seek to expand the benefits associated with” the ID, including promoting the card to “banks and other public and private institutions.” If unauthorized residents can open bank accounts, those residents have less need to keep large sums of cash on person or at home, and are less at risk for robbery and other crimes.[13] To achieve these ends, San Francisco’s law directed the city’s Immigrant Rights Advocate to coordinate with other city agencies to promote the card and develop multiple uses for it.[14]

Inclusion creates economic benefits for a city, as the unauthorized and other vulnerable populations are able to engage in everyday transactions, reducing their own economic hardships.[15] Richmond, California, for example, cited economic benefits in passing its municipal ID law.[16] A recent study found that communities which greet immigrants with benevolence and inclusion, rather than governmental hostility, set immigrants and their children on a stronger long-term course in life. Specifically, meaningful social interaction and educational opportunities for children of immigrants, rather than exclusionary measures, help to reduce fear, social stigmatization, and gang activity.[17]

Moreover, as Center for Popular Democracy points out, if immigration reform passes municipal IDs may facilitate legalization efforts.[18] Municipal IDs could help the unauthorized to prove their US presence, or access other services and institutions to help them do so.[19]

But, to encourage signups, municipal ID legislation must take steps to prevent unauthorized immigrants from risk of federal immigration prosecution simply by applying for the card.[20] New York’s proposed Section 3-136, for example, is a strong step. It provides that (1) the City “shall not retain originals or copies of records” submitted to prove identity, and (2) “to the maximum extent allowed by applicable federal or state law,” ID application information shall be “treated as confidential” and not disclosed to government entities absent the applicant’s written permission, or an order “by a court of competent jurisdiction.”

Yet provisions like these may not entirely allay fears of deportation. For example, immigration courts may be able to subpoena ID card records in deportation proceedings. Or, in New Haven, local anti-immigrant activists sought ID card applicants’ names through state Freedom of Information requests (which Connecticut did ultimately reject).[21]  Legislation could explicitly exempt discovery under Freedom of Information laws. Or legislation could specifically keep names and records confidential, as San Francisco did.[22]

To avoid any “scarlet letter” stigma associated with the ID, a municipal ID program ultimately should encourage civil participation and foster belonging for all city residents, including but not only the unauthorized.[23] New York, for example, has targeted its provisions to benefit the elderly, juveniles, and homeless.

Lastly, municipal ID programs are “unlikely to be barred by federal law,” according to a nonpartisan Congressional Research Service report.[24] Although the federal government is pre-eminent in setting immigration policy, state and local governments still possess authority to regulate the lives of residents within their borders.[25] Thus, a state or municipality is within its rights to issue a unique identifier to its population, including unauthorized non-citizens. No court has held that federal law preempts state or local governments from issuing IDs to unauthorized populations within their borders. Indeed, the only court to rule on municipal IDs, a California state court, found San Francisco’s municipal ID not preempted by federal law.[26]

Specifically, municipal IDs are unlikely to be preempted as a “regulation of immigration” so long as IDs are available to any current city resident, unlike Arizona’s immigration enforcement laws which explicitly targeted unauthorized noncitizens.[27] Nor are municipal IDs likely to be preempted by the federal REAL ID Act.[28] Under the REAL ID Act, a state must require proof of legal immigration status if the state seeks its ID to be used for federal purposes.[29] But, cities typically do not seek their ID to be used for a federal purpose, particularly not proof of lawful immigration status.[30] Indeed, federal law explicitly envisions that localities will use non-conforming IDs on the local level.[31]

Additionally, municipal IDs are unlikely to be preempted under the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996.[32] PRWORA bars state and local governments from providing “state and local public benefits” to unlawfully present noncitizens unless the state enacts legislation that “affirmatively provides” for their eligibility.[33] However, ID cards are not “public benefits.”[34] Nor do municipal IDs grant new federal or state public benefits to immigrants. Under PRWORA, cities do not possess the authority to do so.[35]

In sum, municipal IDs can legally comprise an important part of a U.S. city’s strategy to regularize the lives of the unauthorized. Doing so can help to make cities safer, foster civic integration and participation, and benefit cities economically.

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[1] Paul F. Lagunes, Brian M. Levin, and Ruth K. Dittlman,“Documenting the Undocumented: A Review of the United States’ First Municipal ID Program,” 24 Harvard J. Hispanic Pol’y 43 (2012); de Graauw, Els.  Forthcoming (September 2014).  “Municipal ID Cards for Undocumented Immigrants: Local Bureaucratic Membership in a Federal System.” Politics & Society; Mark Krikorian, Center for Immigration Studies, quoted in Andrea Billups, States Buck Public Opinion, Offer Drivers’ Licenses to Illegals, NewsMax (Jan. 10, 2014) http://www.newsmax.com/Newsfront/illegals-drivers-licenses-states/2014/01/10/id/546325/ (“It’s a way of documenting the undocumented… [it’s a] kind of amnesty.  It doesn’t give them any legal status, but by giving them a government-issued ID, it helps them imbed in society…”)

[2] Kristina M. Campbell, Humanitarian Aid Is Never A Crime? The Politics of Immigration Enforcement and the Provision of Sanctuary, 63 Syr. L. Rev. 71 (2012), at http://lawreview.syr.edu/article-humanitarian-aid-is-never-a-crime-the-politics-of-immigration-enforcement-and-the-provision-of-sanctuary/.

[3] Center for Popular Democracy, Who We Are: Municipal ID cards as a local strategy to promote belonging and shared community identity 5 (Dec. 2013), at http://populardemocracy.org/sites/default/files/municipal%20id%20report.pdf.

[4]http://ccrjustice.org/about-us/movement-support/new-sanctuary-movement.

[5] Jeffrey S. Passel, D’vera Cohn and Ana Gonzalez-Barrera, Pew Research Hispanic Trends Project, Population Decline of Unauthorized Immigrants Stalls, May Have Reversed (Sept. 23, 2013), at http://www.pewhispanic.org/2013/09/23/population-decline-of-unauthorized-immigrants-stalls-may-have-reversed/.

[6] Michael John Garcia, Congressional Research Service, Sanctuary Cities: Legal Issues (Jan. 15, 2009), at http://www.ilw.com/immigrationdaily/news/2011,0106-crs.pdf.  

[7] Christopher Lasch, The Faulty Legal Arguments Behind Immigration Detainers, Immigration Policy Center (Dec. 2013), at http://www.immigrationpolicy.org/sites/default/files/docs/lasch_on_detainers.pdf. 

[8] Mark Noferi and Steven Sacco, The creation of a New York City identity card program, Testimony, New York City Council Immigration Committee (Apr. 30, 2014), at http://www2.nycbar.org/pdf/report/uploads/2_20072714-TestimonyonMunicipalIDsforNYC.pdf.

[9] Int. No. 253 – In relation to the creation of a New York City identity card program, at http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=1709715&GUID=96D7B94F-F24B-4308-8F29-6C559BF444EB&Options=ID|Text|&Search=0253.

[10] Center for Popular Democracy, Who We Are, at 8.

[11] N.Y. Times, Caution Ahead for Municipal IDs (Apr. 27, 2014), at http://nyti.ms/1fJkMtx.

[12] See Karthick Ramakrishnan & Pratheepan Gulasekaram, Understanding Immigration Federalism in the United States, Ctr. for Am. Progress 21 (Mar. 2014), at http://www.americanprogress.org/wp-content/uploads/2014/03/StateImmigration-reportv2.pdf.

[13] Id.

[14] San Francisco Administrative Code § 95.2(d) (“The Immigrant Rights Administrator shall be responsible for coordinating with the Agency and other City Departments the promotion of the cards and the development of multiple uses for the cards.”), available at Center for Popular Democracy, Who We Are, at 48-49.

[15] Center for Popular Democracy, Who We Are, at 10.

[16] Id. at 44.

[17] Sarah Hendricks, Living in a Car Culture Without a License, Immigration Policy Center 9 (Apr. 2014), at http://www.immigrationpolicy.org/sites/default/files/docs/living_in_car_culture_without_a_license_3.pdf.

[18] Fernando Riosmena, At the Edge of US Immigration’s “Halt of Folly:” Data, Information, and Research Needs in the Event of Legalization, Journal on Migration & Human Security 1(4):148-62, https://doi.org/10.1177/233150241300100402.

[19] Center for Popular Democracy, Who We Are at 5.

[20] See N.Y. Times, Caution Ahead for Municipal IDs (“originals should be returned to cardholders and copies destroyed.”)

[21] Cristina Costantini, Municipal ID Cards Given To Undocumented Immigrants In Cities Across The U.S. With Varied Success, Huffington Post (Oct. 24, 2011), at http://huff.to/1u08eXX

[22] By comparison, San Francisco’s legislation specifically provides that the city will keep confidential “the name and other identifying information” to the maximum extent provided by law.  San Francisco Administrative Code § 95.2(c)(3), available at Center for Popular Democracy, Who We Are, at 49.

[23] Center for Popular Democracy, Who We Are, at 10.

[24] Kate M. Manuel & Michal John Garcia, Unlawfully Present Aliens, Driver’s Licenses, and Other State-Issued ID: Select Legal Issues, Cong. Research Serv. 20-21 (Mar. 28, 2014), at http://www.fas.org/sgp/crs/misc/R43452.pdf.

[25] Ramakrishnan & Gulasekaram, Understanding Immigration Federalism, at 1.

[26] Langfeld v. City of San Francisco, Case No. 508-341, Order Sustaining Respondents’ and Intervenors Demurrer (Cal. Sup. Ct. May 13, 2008).

[27] Manuel & Garcia, at 13, 16, citing United States v. Rivera, 516 F.3d 500, 503 (6th Cir. 2008) (certificates for driving are “not related to naturalization, citizenship, or legal status”). Manuel & Garcia argue that legislation granting drivers’ licenses or IDs to all residents (such as New York’s), rather than specifically barring drivers’ licenses to unauthorized immigrants, is more likely to survive preemption challenges. Id. at 16, citing LULAC v. Bredesen, 2004 U.S. Dist. LEXIS 26507, *21 (M.D. Tenn., Sept. 28, 2004).

[28] P.L. 109-13, Div. B, §202, 119 Stat. 312-315 (May 11, 2005) (codified, as amended, at 49 U.S.C. §30301 note).

[29] P.L. 109-13, Div. B, at §202(b)(2)(B).

[30] Manuel & Garcia, at 16-17, 20-21.

[31] Id. at 17; P.L. 109-13, Div. B, §202(d)(11).

[32] 8 U.S.C. §1621.

[33] 8 U.S.C. §1621(d).

[34] Manuel & Garcia, at 17-18.  PRWORA defines public benefits as “any grant, contract, loan, professional license, or commercial license provided by an agency of a State or local government or by appropriated funds of a State or local government,” or “any retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemployment benefit, or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by an agency of a State or local government or by appropriated funds of a State or local government.” 8 U.S.C. §1621(c)(1)(A), (B).

[35] Manuel & Garcia, at 21.