Texas likely to set bar: Other states watching as anti-sanctuary cities legislation goes to vote

by Zahira Torres \ Austin Bureau
Posted: 06/21/2011 12:00:00 AM MDT

AUSTIN -- Arizona may have opened the door for states looking to plunge into the enforcement of federal immigration policy but political analysts throughout the country say Texas will set the bar.

Texas lawmakers this week will vote on legislation that allows local law enforcement to question the immigration status of people they detain or arrest for violations that include traffic stops.

If the state approves the legislation, it will join at least six others -- Arizona, Utah, Georgia, Indiana, Alabama and South Carolina -- that have passed large-scale measures targeting various aspects of federal immigration policy, according to the National Conference of State Legislatures.

But many states are watching how Texas' Republican-dominated Legislature reconciles a growing Hispanic electorate with immigration enforcement measures that appeal to the GOP base.

Texas -- a border state -- has nearly 9.5 million Hispanic residents who make up about 38 percent of the state's 25 million people.

"Texas' story towards immigration will hold a lot of weight in the rest of the country," said Ann Morse, a program director for NCSL, which monitors more than 50 immigration-related omnibus bills that were filed in 30 states.

Texas lawmakers are considering a measure targeting so-called sanctuary cities, a move to expand the federal Secure Communities program and a requirement that proof of citizenship be shown when applying for a driver's license.

Gov. Rick Perry identified the abolishment of so-called sanctuary cities as an emergency early this year.
Sanctuary cities, which have generally been defined as those that refuse to cooperate with the federal government on immigration enforcement, have not been formally identified in Texas.

But Perry, now considering a bid for president, used the issue to campaign against former Houston Mayor and Democrat Bill White in last year's gubernatorial election. Perry's definition of sanctuary cities includes those that establish a policy that keeps local authorities from enforcing federal immigration law.

Local law enforcement in the state has historically worked with the federal government to target criminals. In some cases, states throughout the country have passed legislation that mirrors federal law to go after violent offenders that include drug traffickers, human traffickers and murderers.

But Morse said the federal government's inability to pass comprehensive immigration reform in 2006 created a new dynamic. She said it has become harder to distinguish where national security ends and state policing begins.

The question becomes, "How much farther should states venture into enforcement that might be more civil in nature than criminal?" she said.

If lawmakers in the House approve the measure as expected, Texas would join a list of states that are expanding to enforce federal immigration law.
Texas' proposed law allows any citizen to file a complaint with the state's attorney general if the person believes a local government has established a policy that prohibits certain employees from questioning someone's legal status.

The attorney general could file a lawsuit, putting local governments at risk of losing state grant money. In addition, cities or counties that lose the lawsuit may be required to pay the state's court costs.

Another provision would put into law the current practice of requiring Texans to prove they are in the country legally before they can get a driver's license.

And, if passed, the measures could make local law enforcement check the immigration status of every person who is arrested using a federal immigration enforcement program called Secure Communities.

The state is trying to expand the use of the Secure Communities program to include people who are arrested for lesser violations at a time when the federal government, under pressure from states threatening to opt out, is stressing that the program should primarily focus on targeting undocumented immigrants who commit serious crimes.

Those measures are less stringent than the new Alabama law, which requires public schools to check the legal status of their students and bars undocumented immigrants from attending college.

The Alabama law also prohibits landlords from knowingly renting property to an undocumented immigrant, offers no relief to most illegal immigrants who are victims or witnesses to a crime and prohibits people from transporting a known undocumented person.

Georgia's law shares with Texas in allowing law enforcement officers to check the immigration status of anyone believed to have committed a crime, including a traffic offense. But unlike in Texas and Alabama, it exempts victims and witnesses of crimes.

The law in Georgia is similar to Alabama's with a provision that requires many businesses to check the immigration status of new employees through a federal database. It also prohibits people from transporting or harboring undocumented immigrants.

Much of the flurry of immigration-related legislation came after Arizona passed Senate Bill 1070, which required local law enforcement to act as de-facto Border Patrol agents. Many provisions in the bill were barred from taking effect by a U.S. district judge.

Hispanic groups applauded Perry during his re-election campaign for saying such legislation "may be right for Arizona but it ain't exactly right for Texas." The governor maintains that the measure currently before the Legislature is different because Arizona requires the enforcement of federal immigration law, while Texas simply permits it.

State Sen. Tommy Williams, R-The Woodlands, one of the legislation's authors, said the measure is a pro-active border security tool that sends a message to "criminal illegal aliens that we will not tolerate their presence."

"This debate is not about political parties, nor is it about race, or hate, or fear mongering," Williams said.

But Barbara Hines, a clinical law professor and co-director of the Immigration Clinic at the University of Texas at Austin, said border security has become the buzzword to go after undocumented immigrants seeking a better life for their families.

"Questioning someone in Abilene, Texas, or in the Panhandle who is stopped for going through a stop sign and doesn't have a driver's license has nothing to do with border security," Hines said.

Hines said the use of such language to support the legislation could also be a way to indirectly target Hispanics.

It is "a blurring of the lines between immigration and race and whether restrictions on immigration become code words for a reaction to changing demographics in our country," Hines said.

States that have passed immigration-related legislation have seen increases in their Hispanic population over the past decade, according to figures from the 2010 U.S. Census.

About 1.9 million, or nearly 30 percent, of Arizona's 6.4 million residents are Hispanic. In Alabama, a state of nearly 4.8 million people, the Hispanic population grew from 75,830 people in 2000 to more than 185,600 people in 2010. And, the Hispanic population in Georgia nearly doubled to more than 853,600 people out of about 9.7 million residents.

Texas' proposed law will be challenged in court.

While the laws passed by other states have been challenged and halted before their implementation, many of the lawsuits in Texas may come after the law is enacted.

Luis Figueroa, a legislative attorney with the Mexican American Legal Defense and Educational Fund, said most of the other states have passed clear mandates that could be immediately challenged in court. The Texas bill is more ambiguous.

"It makes it more individualized," he said, adding that many lawsuits would stem from racial profiling. "We have to look at specific incidents and specific city and county policies."

Counties such as El Paso, that believe they may already be in violation, may be able to challenge the law in court before it is enacted, Figueroa said.

Former American Civil Liberties Union activist Carl Starr sued El Paso County in federal court in 2006 after a sheriff's deputy stopped a bus he was riding on and allegedly asked each person to provide proof of citizenship.

The lawsuit led to a settlement that required county officials to establish a clear, written policy prohibiting deputies from enforcing civil immigration laws and to train them on the limits of their authority to enforce those laws.

If the county follows the terms of the settlement, it could lose between $7 million and $20 million in state grant funding under the proposed law. On the other hand, Starr has warned the county that he will file another lawsuit if officials forgo the terms of the settlement in order to meet the provisions in the proposed state law.

Zahira Torres may be reached at ztorres@elpasotimes.com; 512-479-6606.

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