Will California Lead the Way in Expanding the Rights of Non-Citizens?
It is no secret that in the past few years, many states—frustrated at the lack of progress in Washington at reforming what is widely considered to be a broken federal immigration system—have attempted to take matters into their own hands. Most famously, Arizona enacted a punitive anti-immigrant statute (S.B. 1070) that spawned copycat laws in other states, including Alabama (whose immigration enforcement law was in many ways tougher than the Arizona law). Many observers expected that the tide would be stemmed by the Supreme Court’s 2012 decision, Arizona v. United States, which struck down most of the Arizona law’s harshest provisions on the ground that they were preempted by federal law. In fact, after a brief hiatus in 2012, immigration legislation at the state level rebounded in 2013. At the same time, a counter-trend has emerged, with some states enacting what could be viewed as pro-immigrant laws. In California, legislators are even considering a bill that would allow certain non-citizens to sit on juries. Does all of this presage a more liberal attitude toward immigrants?
According to the National Conference of State Legislatures (NCSL), as of June 30, 2013, state legislatures had already enacted more immigration-related laws and resolutions than in all of 2012. It has been somewhat surprising to many observers that California, a border state which has traditionally attracted large numbers of immigrants, has not jumped on the recent anti-immigrant legislation bandwagon. Of course, the state got burned in the 1990s, when a federal district court held that Proposition 187—which attempted to discourage unauthorized immigration into the state by using a comprehensive scheme of classification, reporting, document control, and denial of public benefits—was preempted by federal law. (See League of United Latin American Citizens v. Wilson, 908 F. Supp. 755 (C.D. Cal. 1995).) And with its large population of Latino voters, it may be that demographically, California is less amenable to restrictive immigration legislation than it has been in the past. Indeed, both San Francisco and Los Angeles have long-standing policies prohibiting city officials from inquiring into immigration status. From 2007 through 2011, a number of local municipalities in California did enact their own ordinances designed to discourage the employment of unauthorized foreign workers, but these were all invalidated under a state law enacted in 2011.
California, like eleven other states, allows undocumented high school graduates to qualify for in-state college tuition rates. The legislature has also passed a bill (A.B. 60) that would permit undocumented immigrants to obtain state-issued driver’s licenses (already permitted in nine other states and the District of Columbia). The California State Bar recently found an undocumented immigrant who passed the state’s bar examination to be fit for admission to the bar. The California Supreme Court, during oral arguments held on September 4, 2013, appeared poised to deny the applicant, Sergio Garcia, admission to the bar absent legislative action that would specifically permit it, but now the state legislature has passed a bill (A.B. 1024) authorizing the Supreme Court to admit an authorized applicant to the bar even if he or she is not lawfully present in the United States. At this writing, both A.B. 60 and A.B. 1024 were just awaiting Governor Brown’s signature. Governor Brown has already signed another bill (A.B. 817) that would allow lawful permanent residents—who of course cannot vote in the United States—to work as poll monitors during elections, help translate instructions to citizens with limited English fluency, and offer other assistance to voters during elections.
Another bill awaiting the Governor’s signature (A.B. 1401) would allow lawful permanent residents to sit on juries. This bill was more controversial and faced some serious opposition. For example, Assemblyman Rocky Chávez, who represents a district in northern San Diego County, was cited in an article in the New York Times as saying that allowing non-citizens to serve on juries would make it harder to uphold American standards of law. But the bill’s sponsor, Assemblyman Bob Wieckowski—a Democrat from Fremont who chairs the California Assembly’s Judiciary Committee—reportedly said during floor debate that “[Lawful permanent residents] benefit from the protections of our laws, so it is fair and just that they be asked to share in the obligation to do jury duty.”
Legal scholars agree with Wieckowski. Hiroshi Motomura, a professor of immigration law at the University of California at Los Angeles, pointed out in the New York Times that “[t]here is an argument that in parts of California a jury without a legal permanent resident is not really a jury of peers.” Kevin Johnson, the Dean of the law school at the University of California at Davis, who was interviewed about the bill on “The Takeaway” (a national news program broadcast on public radio), agrees that since immigrants can have their disputes resolved by juries, they should also have the right to have their case heard by a jury that represents a cross-section of their community. As an example, Johnson mentions that in Los Angeles County (one of the largest counties in the United States), approximately 40 percent of residents are non-citizens, and that the California bill would help create a more democratic, representative jury system for such a diverse population. Professor Johnson also acknowledged, however (building on remarks Supreme Court Justice Ruth Bader Ginsburg made a week earlier on the same radio show), that all state legislatures can really do with respect to immigration policy is to “tinker around the margins to try to make some sense of the current system that exists.” (Professor Johnson elaborates further on why allowing lawful permanent residents to serve on juries is desirable in an op-ed he co-authored in the Sacramento Bee with Erwin Chemerinksy, the Dean of the University of California-Irvine School of law.)
These recent initiatives in California and other states may indicate that anti-immigrant sentiment is lessening in light of the national debate about immigration that has taken place over the past year. Nonetheless, we need to bear in mind that while states can enact laws that grant some of the privileges of citizenship to non-citizen residents, only Congress can create a pathway to lawful status and citizenship for undocumented immigrants, and only Congress can fix the other problems that plague our current immigration system and hinder our country’s ability to help families reunite and help our economy attract the workers it needs to grow and flourish. In doing so, Congress would do well to keep some of California’s humanitarian measures in mind as it proceeds with its work on crafting comprehensive immigration reform legislation.
- Austin T. Fragomen and Careen Shannon