Testimony at Topeka Capitol: Briefing on Immigration - Feb. 13, 2013 (House Federal and State Affairs Committee)

So, due to popular demand, I'm sharing the remarks portion of my testimony yesterday. 

I have no illusions that my testimony yesterday will defeat in-state tuition repeal.  I look at yesterday as doing our best, launching our first salvo of many to spread truth, reason, and love to our representatives as they decide whether to deny the dreams of undocumented Kansans.  I hope and believe we're just getting started.  Our legislature has not yet heard from the students.  They will. 

I channeled my NILC days lobbying in DC, and it brought back many memories to my time at the Kansas Hispanic Affairs Commission as this was my first time fighting the fight in the Topeka capitol since in-state tuition's passage in 2004.  I was incredibly inspired by the DREAMers I spent last weekend with as they are the reason 2012 was a success nationally, and the KSMODA resurrection being in full force doing damage here in the region meant only that I could not let them down.  They move mountains for the undocumented student movement, and if I can do any damage with them, count me in.    

I felt really comfortable yesterday in our state's house of power...like I was in some Matrix type zone seeing green digits scrolling down knowing how to respond.  Hmm. 

But yesterday was very little about me and my story, although I did share a little of it with the legislators.  It was about battling back against the other side, against the supposed expert Kris Kobach's flawed arguments.  Most importantly, to me it is not a policy issue, for it is never about policy when you're fighting for people you care about.  

My remarks were only 25% of the fun.  The real fun came from the question and answer period with the legislators.  They got to pick who they addressed their question to, so when most of the questions were heralded towards "Mr.Rico," you have that moment of anxiety thinking "Is this the vato that's going to stump me, make me look dumb, or worse: out to be a liar?"  I was called to answer more than 10 questions out of the 20 or so questions, and I'm proud to say I had ready responses plus added another layer of arguments where I could. 

The most thrilling part was when I was able to see conservative Republican heads nodding with me as I explained a particular area of law.  Most of the head nodding was during my analysis when I pointed out the flaws in Kobach's arguments.  So, to me it signified that they heard and understood my position, and perhaps, just perhaps, agreed with my position.  That is with one exception, Rep. Brett Hildabrand who wrote the in-state tuition repeal bill.  He remained silent for all 1 hour and 30 minutes.  He checked his computer most of the time, and blinked a lot. 

Lastly, I wanted to respond to the legislator who went on a rant about "they came in illegally, why are we not talking about that?  The first act they did in the U.S. was an illegal act...[etc.]" I believe it was Rep. Allan Rothlisberg.  Sir, I don't think we view immigration, immigrants, and all humans through the same lens.  In fact, I don't believe we see the same things as problems when viewing the same landscape. 

Is it the person who landed on an airplane, the person who arrived on a ship, the person who crossed a border, the person who overstayed a visa, or the person who sought the American dream as all of our ancestors once did that's the problem?  Or could it be something else?  Could it be that undocumented immigration is merely an effect of a larger cause?  If you keep thinking the symptom is the problem, we will never get to addressing the true cause of undocumented immigration. 

What is the problem? Take your pick: Whether it be push or pull factors caused by the global economic economy, the lack of visas available to reunify families, the 10 year bar that many parents face, the decades long wait in the "line" which hopefully even exists, the broken system that does not match jobs needed in the US (Southwest Kansas too) with an adequate number of legal mechanisms to come to the United States, with labor protections, and a path to remain here if so desired.  I could go on.

The southern border has a "stay out" sign.  But there are realities that welcome the immigrant here (faith principles as well), dare I say need the immigrant here as more and more stores are opened by immigrants, as more U.S. citizens gain jobs through immigrant owned businesses than immigrants "take," as more US citizens have jobs due in part to relying on the economic output of the arriving immigrant, as more homes are being purchased by undocumented immigrants,  as crime numbers go down as immigrants move in, as social security gets a windfall from the taxes paid by immigrants, as immigrants put in more to the economy than take out, and as communities rely on the infusion of new immigrants to keep their populations stable and keep their cities on the map. If you pull the plug on the immigrant, what will happen?  Is it truly us that's the problem? 
Oh yeah, and Happy Valentine's Day to you!

Raymond Rico

Federal and State Affairs Committee

Briefing on Immigration

February 13, 2013

 

 

            My name is Raymond Rico; I was born and raised in Kansas City, KS to an immigrant father, and both of my grandparents immigrated to the U.S. on my mother's side.  I practice immigration law at the Garcia Immigration Law Firm.  My work allows me the chance to see how immigration laws impact the daily lives of immigrants from all over the world.  Every day I get to help immigrants navigate the immigration system and if able, adjust their immigration status. 

            Thus, immigration status is not static, it can change.  If this weren't the case, I would not have a job.  Granted, at times, there is no line to enter.  However, in other instances the line may be decades long.  Many immigrants in Kansas are at various stages of the legalization process, many will be able to have their status changed. Perhaps even this year as congress will likely address fixing our federal immigration system in 2013. 

            In the meantime, many states have introduced bills which attempt to mirror the core provisions of Arizona's SB 1070.  Most states have failed in their attempts, but those that have passed such laws have faced litigation costing their states large sums of money defending them, states have suffered huge implementation costs, have had their provisions halted by the courts, and eventually ruled unconstitutional. 

            According to the Government Accountability Office, six states who passed laws to deny public benefits to undocumented immigrants spent over $8.3 million dollars to eventually find eight out of 3.6 million Medicaid enrollees receiving benefits without being eligible for them due to their status.  These six states saved a combined total of $11,048 dollars.

            The U.S. Supreme Court decision on Arizona's SB 1070 struck down three of the four main provisions on preemption grounds.  Meaning that:

• A state cannot impose criminal penalties on unauthorized immigrants who unlawfully seek employment.
• A state cannot make it a state crime to not carry proof of status.
• A state cannot arrest immigrants without a warrant where “probable cause” existed that they committed a public offense making them removable from the United States (preempted because it would have given Arizona police more power to arrest immigrants than is possessed by federal immigration officers, who must generally obtain a warrant before making an arrest).

            These provisions were ruled unconstitutional in the U.S. Supreme Court decision on Arizona's SB 1070.

            On the fourth provision, which requires police to determine the immigration status of someone arrested or detained when there is “reasonable suspicion” they are in the United States unlawfully; the U.S. Supreme Court ruled that it was too early to tell if this provision is unconstitutional as well.  Thus, although it was upheld for the moment, it was no resounding legal victory as some proclaim. 

            The Court said it depends on how the Arizona courts interpret the language in the law and how state law enforcement actually implements it.

            If state officers hold someone for possible unlawful presence without federal direction, then it would be unconstitutional.

            If "Reasonable Suspicion" will require the delay of a detained individual for no other reason than to verify their immigration status, then the law would raise constitutional concerns under the Fourth Amendment.  For example:

“A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.” Arizona, 132 S. Ct. at 2509.

            There are also multiple pending cases challenging this provision as in violation of the 14th Amendment Equal Protection Clause.  By the way, Sheriff Joe Arpaio gave sworn testimony stating that in Arizona, extended detentions were already the norm.  

            My career is my vocation, and in my career I have gotten to personally know many undocumented youth.  Education is the gateway to the "American Dream" and a college degree is now a virtual requirement for financial security.  That is why I am saddened that a bill has once again come up to possibly repeal in-state tuition via HB 2192. 

            Many undocumented students have overcome many barriers you and I have never faced - yet have done everything right and wish to pursue higher education in Kansas, the only place many have ever known. As noted above, the legal process can take a long while, and many students are currently in line waiting for legal residency. Most students have become fluent in English if they weren't already, have assimilated into the American culture, and consider themselves Kansans.

            Obviously we're talking about young people here, who are present in Kansas, have grown up here, and will remain here.  Kansas has already invested much in their K-12 education.  As our population ages, we should prepare all young talented students who want to remain in Kansas to fill the positions that will be most in need.  Our young immigrants have been and will continue to sustain Kansas' rural communities, start businesses here, and contribute their talents here.  All of us know that people with a college degree on average will earn more in income than those without, and with more income means more contribution in taxes.

            As undocumented students cannot receive financial aid, many are already taking only a few classes per semester, but a repeal of in-state tuition will cause students to drop out, decreasing school revenues, and allowing our students to remain uneducated, remain in a permanent underclass, while remaining in Kansas. 

            Will we really debate repeal at a time when the federal government seems primed to consider comprehensive immigration reform?  (Which all signs seem to point to inclusion of the DREAM Act within any reform bill). The DREAM Act is federal legislation that would allow a path to legalization for youth who arrived as minors, have been in the US for over five years, and complete two years of college or two years in the military.  Basically, the same students I'm talking about today.  To be clear, a path to legalization is something Kansas' instate tuition bill does not have the power to do.  Only the DREAM Act can provide such a path.  Many leaders in Washington of both political parties have stated their support of the DREAM Act recently.

            Kansas' in-state tuition law has been challenged in court in large part by Kansas Secretary of State, Kris Kobach.  He also fought California's in-state tuition law, which is nearly identical to Kansas' law.  On both occasions, the lawsuits failed.  In-state tuition has been upheld as constitutional. 

            The California Supreme Court unanimously ruled that the California law did not improperly make in-state tuition available to undocumented students based on “residence.”

            In Kansas, the court case Day v. Sebelius was dismissed in the 10th circuit. The court ruled that plaintiffs lacked standing to challenge the constitutionality of the Kansas law and lack a private right of action to enforce preemption under federal law.  The student plaintiffs were not injured by the passage of the in-state tuition law, nor would they benefit from its repeal. 

            Thus, it is absolutely not true to say that in-state tuition is something states may not do.  In-state tuition complies with Federal law (8 U.S.C. § 1623,  section 505 of the Illegal Immigrant Reform and Immigrant Reconciliation Act of 1996 (IIRAIRA)).  

            The federal government could have banned in-state tuition in 1996, they did not do so. Although the wording says you cannot allow an undocumented immigrant "any postsecondary benefit unless a citizen or national of the United States is eligible for such a benefit," a proper interpretation of the statute is also that a state may allow in-state tuition rates to undocumented students if all citizens or nationals are also eligible for the same benefit. 

            Kansas need not "give" in-state tuition to all U.S. citizens from other states, it satisfies section 505 if it makes all U.S. citizens eligible for the same benefit.  The Kansas law makes all U.S. citizens eligible for in-state tuition if they meet the requirements of K.S.A. § 76-729: three years of high school and graduation from a high school in Kansas.  Thus Kansas' law is in compliance with federal law.  In-state tuition is constitutional, and that's why the courts have ruled as they have. 

            With the congress debating immigration reform, with the DREAM Act primed for passage, this is the wrong time to repeal in-state tuition.  But there is even another disincentive to repeal in-state tuition.  On August 15th many students have begun applying for DACA, which stands for "Deferred Action for Childhood Arrivals."

            Individuals may request deferred action if they:

• Came to the United States before their 16^th birthday;
• Were between the ages of 15 and 30 and had no valid immigration status on June 15, 2012;
• Have continuously resided in the United States between June 15, 2007 and the present;
• Are currently in school, graduated from high school, obtained a GED, or were honorably discharged from the Armed Forces;
• Have not been convicted of a felony, a “significant” misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

 

            Deferred Action is not a new concept, it has been around for ages, and it is an extension of prosecutorial discretion.  Prosecutorial discretion is affirmed on page one of the Arizona SB 1070 Supreme Court ruling which states: "Removal is a civil matter, and one of its principal features is the broad discretion exercised by immigration officials, who must decide whether to pursue removal at all."  With DACA, the federal government is using its discretion to determine that youth who fit the above criteria are not high priority individuals and that limited resources are best used elsewhere, not to deport valedictorians. 

            DACA does not create a path to a green card or citizenship, it does not extend to family members or make a student eligible for financial aid.  With DACA, youth can apply for a work permit, allowing not only work eligibility, but the chance to put degrees earned in Kansas to good use.  Now, once a DACA eligible student graduates, he or she can work in their fields of study.

            I do not have data to show you what DACA eligible students will be across the board, but I have worked on around 300 DACA cases.  And one thing I always ask a DACA student is "what do you want to be?"  Among males, the most common answer is a wish to be an engineer.  Among females, the most common answer is a wish to be a nurse.  A need we have across the country is the need for more bilingual nurses and STEM students.  With needs in these areas, it does not make sense to stop the education short of any of our talented students, especially now that one can use their degrees and work authorization to work in fields that we most need.  If given a chance, our undocumented youth wish to contribute their talents here, pursue higher education here, pay taxes and contribute to the Kansas economy.  The choice is yours as to whether we have our youth educated, or not.