2012 Virginia General Assembly Outlook -- Immigration Policy Issues

Virginia General Assembly

2012 Pre-Session Report

by Claire Guthrie Gastañaga

October 31, 2011

Virginia has a long history of passing legislation to identify and seek removal of unauthorized immigrants, beginning with a law enacted during the eugenics movement that required Virginian's mental health institutions to check immigration status on admission and report to the federal authorities anyone not in the country legally.  Beginning in 2003 and reaching a crescendo in 2008, legislation has been introduced in every session of the General Assembly that directly or indirectly affects Virginia's immigrant communities and those who serve. 

The number and scope of bills has varied depending on political and environmental factors.  The peak year to date, 2008 when over 130 bills were introduced, was driven by hotly contested legislative elections in certain legislative districts in which Democrats and Republicans, alike, made immigration related issues a key part of their campaign platforms and voter communication.  The 2011 election cycle has seen some of the same rhetoric we saw in the 2007 election cycle, and the tone reflects increasing national attention on enforcement only approaches to immigration reform and passage of draconian, wide-reaching legislation in Arizona, Alabama and Georgia.

Over the years, Virginia has enacted nearly 50 laws with direct effects on immigrants and aliens. While positive legislation has passed that deals with human trafficking and wage theft, most of the laws now on the books in Virginia are restrictions on the rights or benefits of "aliens" or immigrants, including the rights and benefits of persons lawfully present in the United States.

Here's a summary of key laws in effect in Virginia and the outlook for legislative action in the 2012 General Assembly Session:

I. Law Enforcement

There have been a series of bills enacted to increase the ability of law enforcement to identify and move toward deportation "criminal aliens" -- documented and undocumented immigrants charged with and/or convicted of criminal violations of Virginia law.  Prior to 2008, Virginia law required immigration status checks after conviction of a crime upon entry into a jail or prison and again as a condition of probation or parole.  Since 2008, Virginia law also requires that immigration inquiries be made of every person taken into custody on a criminal charge. In addition, Virginia is a statewide participant in the Secure Communities program that forwards fingerprints of those arrested to federal authorities for an immigration status check. Another law passed in 2008 establishes a presumption against bail for persons in the country without authority who are accused of committing certain serious criminal offenses.

Passage of legislation increasing the focus on determining the status of individuals taken into custody by police is seen as likely to deter people from coming forward to report crimes or to seek services if they are victims of crime. Legislation intended to mitigate this adverse effect by protecting victims and witnesses to crime has passed the Virginia Senate three times unanimously, but has been rejected in a committee of the House of Delegates. This legislation would have established a statewide policy against routine inquiries into the immigration status of individuals who are victims or witnesses to crime and are cooperating with authorities.

Outlook for 2012 General Assembly Session:

Legislation defeated in the past but likely to be introduced again:

1) bills that give line officers increased authority to take people into custody on minor offenses, including driving without a license;

2) legislation to require or permit immigration status checks whenever someone is stopped lawfully by the police (not enjoined by the Alabama Court); and

3) legislation to provide additional 287g authority at the state and local level.

New legislation likely to be copied from other states:

1) legislation to require that persons caught driving without a license be taken into custody if the police officer cannot confirm, have their status checked by a magistrate and, if found to be in the country without authority, be detained until trial or turned over to federal authorities (not enjoined by the Alabama Court); and

2) legislation to make it a state crime not to carry immigration documents (not enjoined by the Alabama Court).

II. Business and Employment

Demands continue to increase that the General Assembly impose sanctions on employers who hire persons in this country without the legal authorization to work.   To date, Virginia has enacted the following laws that affect Virginia employers and contractors:

1) a longstanding law making it a misdemeanor to hire an unauthorized worker (in effect since1977 but likely unconstitutional);

2) a  requirement that every state and local contractor sign an agreement to abide by federal  immigration laws;

3) authority for the State Corporation Commission to revoke the right of any employer to do business in Virginia if convicted of federal immigration law violations;

4) a requirement that state agencies use e-Verify to check new workers; and

5) a requirement that state contractors with more than 50 employees seeking contracts in excess of $50,000 use e-Verify to check new workers.

Outlook for 2012 General Assembly Session:

The following bills defeated in past sessions are likely to be reintroduced this year:

1) legislation to require all employers, all state and local contractors, and all state license holders (like doctors and lawyers) regardless of size of business to use e-Verify;

2) legislation to authorize private lawsuits or lawsuits by the Attorney General against employers who are alleged to have hired undocumented workers (currently enjoined from going into effect in Alabama);

3) legislation to limit the use of foreign languages in the workplace;

4) legislation to require proof of legal presence to get a business or professional license; and

5) anti-harboring legislation that makes it a state crime to transport or conceal a person who is in the country without authority (currently enjoined from going into effect in Alabama).

New proposals likely to be copied from other states:

1) A bill to establish a state crime applicable to immigrants soliciting work or working without legal authority (an anti-day laborer bill) (currently enjoined from going into effect in Alabama);

2) legislation to prohibit tax deductions for wages paid to an unauthorized immigrant (currently enjoined from going into effect in Alabama);

3) legislation to ban enforcement in court of any contract made with an unauthorized immigrant (with limited exceptions for medical care, food) (not enjoined by the Alabama Court); and

4) legislation to make it a crime to enter into a business transaction with an unauthorized immigrant (not enjoined by the Alabama Court).

III. Social and Medical Services

Virginia passed a law in 2005 requiring proof of legal presence for state welfare and medical benefits.  Other legislation to limit access to services by undocumented immigrants has been unsuccessful, but remains a perennial topic of legislators.

For the first time in the 2011 legislative session, there was interest on the part of some legislators, immigrant advocates and health care providers in closing the loophole that disqualifies legal immigrants for Medicaid until after 5 years of residence.   Preliminary studies show that investing in preventive care, particularly for pregnant women, can reduce long term costs imposed on the health care system.

Outlook for the 2012 General Assembly Session

Bills considered in past sessions and likely to be reintroduced this year include:

1) legislation to require all recipients of state and local funds to insure no services paid for with such funds were made available to anyone not lawfully present;

2) legislation to restrict the ability of state and local agencies to offer services or print materials in languages other than English, potentially driving up the cost for service providers that are recipients of federal assistance required to provide language access;

3) anti-harboring legislation that would impact the ability of charities to offer food, shelter or transportation to anyone in the country without authority (currently enjoined from going into effect in Alabama);

4) "anti-sanctuary" laws that authorize individual state and local employees to report alleged immigration law violations and prohibit interference in such private action by state or local officials; and

5) positive legislation to expand eligibility for Medicaid benefits for some legally present immigrants.

IV. Education

Virginia has long had in place strict domicile requirements that make it impossible for undocumented students to qualify for in-state tuition at Virginia colleges.  All of the four year institutions currently have policies against admitting students who are undocumented, even as out of state students.

Efforts to pass legislation prohibiting admission to public post-secondary education and to codify prohibitions on in-state tuition have been introduced year after year and defeated.

Similarly, legislation to require local school divisions to count students who are foreign born and to require proof of legal presence has been defeated.

A state level "Dream Act" passed the Senate with bi-partisan support but died in the House.  This legislation would have offered tax-paying undocumented Virginia residents who graduate from Virginia schools the chance to be eligible for in-state tuition if they are in the process of adjusting their status.  It would not have overridden policies at the state institutions against admission of such students, however. 

There has been enhanced recognition that there is a need for increased state support for programs to help immigrants along the path to citizenship and full civic engagement, and for additional resources to help local school divisions address limited English proficiency both among school age children and adults.  Ongoing budget shortfalls have crushed hopes for passage or funding of such initiatives but there is continued interest among legislators from impacted localities across Virginia.

Outlook for the 2012 General Assembly Session:

Legislation introduced and defeated in the past likely to be reintroduced includes:

1) legislation to ban attendance at Virginia public colleges by undocumented students;

2) legislation to prohibit undocumented students from qualifying for in-state tuition;  

3) legislation to require local school divisions to ascertain the citizenship or immigration status of all students and to make reports to state authorities regarding the number of undocumented students, the number of foreign born students and the number of students needing English as a second language courses (not enjoined by the court in Alabama); and

4) possibly, the state level "Dream Act," although the negative focus during the 2011 elections on the votes of legislators who previously supported the state level "Dream Act" make it highly improbable such a bill would pass the Senate in the 2012 Session.  There continues to be no chance it would get out of committee in the House of Delegates, even if it were to pass the Senate.

V. Housing

In past legislative session, lawmakers, particularly those from Northern Virginia, have focused significant legislative efforts on measures to "crack down on" those who violate overcrowding ordinances, including giving enhanced enforcement tools to zoning administrators, increasing fines for violators and enacting new limits on the number of unrelated persons who may live in a single family home.

Little thought has been given to the precedent set in each of these areas, the probability of disparate enforcement or the likely long term adverse effect on the availability of affordable housing of such measures. As the availability of affordable housing continues to atrophy, there are quality of life implications that have not been carefully considered in the emotionally charged atmosphere that continues to permeate this discussion.

Outlook for the 2012 General Assembly Session

Legislation copied from other states likely to be introduced this session:

1) restrictions on contracting by or with undocumented persons that would make unenforceable contracts for sale or lease of real estate (not enjoined by Alabama court); and

2) legal presence requirements for real estate sales or leases.

Evening Edition -- Time to Stop Playing to People's Worst Fears and Darkest Beliefs

Evening Edition last Tuesday night on WVTF focused on immigration in Virginia.

Bob Gibson, the Charlottesville Daily Progress political reporter, hosted a conversation with guests Henrico County Republican Delegate Bill Janis,who wants to crack down harder of illegal immigration, and me, a former Chief Deputy Attorney General of Virginia who has lobbied the Virginia General Assembly for the Virginia Coalition of Latino Organizations.

You can listen to the program, which includes some good comments and questions from listeners as well as a civil discussion among Janis, Gibson and me on a range of topics including local enforcement of immigration law, access to services and the need for comprehensive immigration reform, here.

From my perspective, the most difficult question asked Tuesday night was one from "Anita" from "southside" about her "standard of living" which presupposed that undocumented immigrants are responsible for the economic hardships that she and others in her community are experiencing. The question was difficult because it is impossible not to empathize with her and others in southside and southwest Virginia who are suffering because of current economic factors, too often generated by bad business and public policy decisions, including the long-standing failure of southside businesses to support quality schools, the ill-conceived NAFTA agreement that harmed workers on both sides of the border, and the continuing opposition of business groups to any increase in the minimum wage, and to the very concept of a living wage.

What is frustrating, however, about Anita's question is that it illustrates a growing use of immigrants as the convenient scapegoat on which to focus the economic frustration of southsiders and working people across Virginia by those who would like to divert attention from their own business and policy decisions.

This is similar to what is happening in Prince William where the absolute failure of local leaders to manage growth intelligently (and state leaders to give them additional tools with which to do so) has begun to affect the county adversely -- creating the current NOVA transportation nightmare, increasing demands on services for which there are inadequate public facilities, overcrowding existing county schools, and causing property values to decline in older neighborhoods as new construction draws residents to other areas and there is no policy to encourage redevelopment and infill in the older residential and business areas of the county. So, instead of facing up to their own failures, the local officials and state delegates and senators running for reelection in Prince William have taken the "easy route," and sought to deflect blame for their own ineffectiveness onto immigrants who,in recent years, have moved to the county in increasing numbers.

Across Virginia, it's gotten so that no matter what the issue, whether it is the abject failure to enforce drunk driving laws effectively and stringently or overcrowded schools with deferred maintenance issues, politicians on both sides of the aisle (with few notable exceptions like Gerry Connally) increasingly are resorting to chanting a single, divisive mantra ... it's not us, it's the immigrants.

In an increasingly global and mobile economy, where physical headquarters are increasingly irrelevant and companies and workers alike can pick up and move quickly to another location, this kind of strategy (which may be thought by some to yield short term political advantage) will wreak havoc on Virginia's future long term.

No one wants to locate their business or move their family to a community/state riven by ethnic strife and division no matter which side of the dividing line they are on.

It is past time for Virginia leaders (political, business, religious and community) to begin proactively to educate residents about the benefits of an ethnically diverse Commonwealth and to help build community among our increasingly diverse population, instead of playing cynically to people's worst fears and darkest beliefs.

The risk of not doing so is to give continued credibility to Virginia's dark past and to cloud its future with challenges to the validity of our commitment to a truly inclusive Commonwealth.

Can't Deliver on Promise to Control Growth? Shift Focus to "Illegal Immigration"

Interesting to note in watching this video dialogue with Corey Stewart, chair of the Prince William Board of County Supervisors ... he virtually acknowledges that his failure to deliver on his promise to control growth is the driver in his shift of focus to the scapegoats he's chosen to blame for this failure ... Prince William County's immigrant community. And, take a look at his audience for the campaign speech he is delivering to Help Save Manassas. Res ipsa loquitor.



More great video from Annabel and associates can be found in their interactive documentary file on YouTube at http://www.youtube.com/user/9500Liberty

Who said this and why?

See if you can identify who said this, when and why.

The salutary purpose of the statute is clear. The Legislature had seen the baneful effects of permitting foreigners, who had taken residence in this country, to rear and educate their children in the language of their native land. The result of that condition was found to be inimical to our own safety. To allow the children of foreigners, who had emigrated here, to be taught from early childhood the language of the country of their parents was to rear them with that language as their mother tongue. It was to educate them so that they must always think in that language, and, as a consequence, naturally inculcate in them the ideas and sentiments foreign to the best interests of this country. The statute, therefore, was intended not only to require that the education of all children be conducted in the English language, but that, until they had grown into that language and until it had become a part of them, they should not in the schools be taught any other language. The obvious purpose of this statute was that the English language should be and become the mother tongue of all children reared in this state.

The answer will appear later in the comments.

Why Progressives (and Others) Should Oppose Webb's Amendment to the Comprehensive Immigration Reform Legislation

The amendment Senator Jim Webb (D Virginia) is offering to the comprehensive immigration bill that will be debated in the Senate next week is not a positive one unless you favor the status quo that encourages scofflaws and worse.

Senator Webb's amendment (#1313) cuts the heart out of one of the key components of the bill -- getting the millions of undocumented people now in the US out of the shadows and on the path to earned legalization and citizenship.

Webb was right during the campaign:

For his part, challenger Jim Webb, a writer and former Secretary of the Navy, has been clear about his position on immigration reform. He has said he is for a more secure border, but told reporters last week:

"People who say 'no amnesty' or that we are not going to do anything with the individuals who are here are basically looking at a fairy tale….The people who actually have put down long roots in these communities, we need to find a process to bring them properly into society and into the work force."
-- Washington Times, "Webb focuses on income gap," October 24, 2006

He is wrong now.

Senator Webb's amendment will deny millions of hard working immigrants and their families now in the United States any hope of earned legalization.

Senator Webb's amendment would only allow people to have the chance to earn legalization if they have been in the United States for four years prior to the date the bill is passed and are employed.

Even the people who can meet this standard would be denied the opportunity to become legal unless they can prove to the Director of the Department of Homeland Security that they have "sufficient community ties" to be allowed to walk the path to earned legalization and citizenship.

Under Webb's amendment, no one who is not currently working (e.g., a spouse or child of a worker, a student in college, a person who is disabled) could ever qualify for earned legalization. (This is a particularly ironic requirement that would reward those who have broken our laws by working without authorization but penalize those who are their family members or others who are in the country without documentation but have not worked in violation of the law.)

And, even those who are working may not qualify under Webb's plan if they can't show that:

they "have immediate relatives" living in the US (hard to do if it wasn't legal for your family to join you);

"own" property or a business (nearly impossible to accomplish without a driver's license, a bank account or a social security number);

attended school or college in the US (difficult if you can't afford college because you've been denied in-state tuition or can’t be admitted because the state’s AG has issued an opinion discouraging colleges from admitting those without documentation);

and have paid taxes (also, if this means income taxes, difficult to accomplish as an individual if you can't get a bank account).

Senator Webb's amendment will leave millions of people now in the United States without documentation or the lawful right to remain in our country.

With Senator Webb's amendment, the Senate compromise would be neither comprehensive nor a reform.

The millions who would remain undocumented under Webb's proposal would continue to live in the shadows, creating opportunities for economic and criminal exploitation, requiring billions to be spent on law enforcement to identify them and remove them, and continuing to feed the political frenzy that increasingly surrounds this issue at the state and local level.

Senator Webb's amendment would also divide families, allowing some members to get on a path to citizenship and leaving others behind.

It would leave state and local officials dealing with the millions not allowed to even enter the process toward legalization.

Senator Webb's amendment would create a bureaucracy that is neither workable nor likely to be funded to meet the demand.

Senator Webb’s amendment would require the Department of Homeland Security to make millions of individualized decisions before people are admitted to the legalization process. The bill as introduced requires a criminal background check and payment of a fine before a Z visa is issued and adds requirements as the person progresses along an 8 year path to full legalization (learning English, getting a job, etc).

The effect of Senator Webb’s amendment would be to make the decades long backlogs now familiar to anyone trying to adjust status or seek permission to immigrate look speedy.

Senator Webb says that his amendment would introduce "fairness" into the "broken immigration system." The immigration system is broken, but his amendment is anything but "fair." A system, like our present system, that isn’t either efficient or effective is not fair.

Senator Webb has indicated that his amendment was motivated, in part, by a desire to protect American workers.

Leaving millions of hard working immigrants in the shadows where they can be further exploited will do nothing to protect American workers.

Only when we have a system that works with our economy and makes legal immigrant workers the rule rather than the exception will we have a system that protects American workers.

Webb's amendment will do nothing to remove the incentives for economic and criminal exploitation that currently exist and will ensure that we continue to have a system where immigrant workers are vulnerable to unscrupulous employers who work them in unsafe conditions and too often fail to pay wages that they have earned.

Senator Webb's amendment is not good for Virginia or for the United States, and it should be defeated.

Note: Full disclosure ... I am working as the Virginia coordinator for the Coalition for Comprehensive Immigration Reform which sees the proposed Senate bill as the first step in a long process that we hope will produce a final bill for the President's signature that reunites families, ensures national security, protects workers, and provides a path to citizenship for immigrants who uphold and embrace American values of hard work, family, patriotism, and faith. If you want to know more about the bill and the Coalition or make your views known, you can find more information at www.cirnow.org.

Nebraska 1923 Revisited

Just to prove that history does repeat itself, check out this 1923 Supreme Court decision invalidating a Nebraska law that forbid the teaching of German.

Here's what the lower court had said was the reason for the law:

The salutary purpose of the statute is clear. The Legislature had seen the baneful effects of permitting foreigners, who had taken residence in this country, to rear and educate their children in the language of their native land. The result of that condition was found to be inimical to our own safety. To allow the children of foreigners, who had emigrated here, to be taught from early childhood the language of the country of their parents was to rear them with that language as their mother tongue. It was to educate them so that they must always think in that language, and, as a consequence, naturally inculcate in them the ideas and sentiments foreign to the best interests of this country. The statute, therefore, was intended not only to require that the education of all children be conducted in the English language, but that, until they had grown into that language and until it had become a part of them, they should not in the schools be taught any other language. The obvious purpose of this statute was that the English language should be and become the mother tongue of all children reared in this state. [citations omitted]

And, here's what the Supreme Court said in reversing the Nebraska court on constitutional grounds:

The desire of the Legislature to foster a homogeneous people with American ideals prepared readily to understand current discussions of civic matters is easy to appreciate. Unfortunate experiences during the late war and aversion toward every character of truculent adversaries were certainly enough to quicken that aspiration. But the means adopted, we think, exceed the limitations upon the power of the state and conflict with rights assured to plaintiff in error. The interference is plain enough and no adequate reason therefor in time of peace and domestic tranquility has been shown. ... As the statute undertakes to interfere only with teaching which involves a modern language, leaving complete freedom as to other matters, there seems no adequate foundation for the suggestion that the purpose was to protect the child's health by limiting his mental activities. It is well known that proficiency in a foreign language seldom comes to one not instructed at an early age, and experience shows that this is not injurious to the health, morals or understanding of the ordinary child.

Every period of immigration has resulted in the same cycle of fear, ultimately unnecessary and ham-handed attempts at forced assimilation, and legislative isolationism.

As Santayana said: Those who cannot learn from history are doomed to repeat it.

What's next ... shall we repeat the experience with internment of the Japanese?

How many more apologies will future Virginia legislatures need to offer?

"We are made wise not by the recollection of our past, but by the responsibility for our future." George Bernard Shaw