July 1, 2011
Pursuant to Elections Code Section 9005, we have reviewed
a proposed initiative
(A.G. File No. 11‑0012) that would (1) make changes to the application process
for federal, state, and local public benefits, and (2) authorize various law
enforcement activities related to the immigration status verification of certain
individuals and their possible detainment.
Background
Federal, State, and Local Benefits. Under
federal law, public benefits are generally defined to include grants, contracts,
loans, professional licenses, or commercial licenses.
The definition also includes any retirement,
welfare, health, disability, public or assisted housing, postsecondary
education, food assistance, unemployment benefits, or any other similar benefits
provided to an individual, household, or family with public funds.
Immigration Status and Program Eligibility.
United States citizens and nationals (nationals are generally persons born in an
outlying possession of the United States or who meet specified criteria) are
typically eligible for all public benefits. Legal noncitizens, sometimes
referred to as qualified aliens, are barred from receiving certain federal
benefits and may be barred from receiving state and local benefits. Undocumented
persons, also known as illegal aliens, are generally ineligible for public
benefits with certain exceptions, such as emergency medical services.
Systematic Alien Verification for Entitlements
(SAVE) Program. The SAVE Program operated by U.S. Citizenship and
Immigration Services is an automated system designed to aid federal,
state, and local agencies in verifying the immigration status of applicants for
governmental benefits. The SAVE offers access to immigration status information
contained in the U.S. Department of Homeland Security (DHS) databases.
Immigration Laws. Federal law (1) specifies
the conditions under which foreign nationals may be admitted to and remain in
the United States, (2) establishes a registration system to monitor their entry
and movement in the country, and (3) requires U.S. DHS to respond to any inquiry
from a government agency seeking to verify the citizenship status of an
individual.
Federal government agencies are responsible for enforcing
immigration laws. Under agreements with the federal government, however, state
or local government agencies may assist the federal government in its
enforcement of those laws. An agreement with the federal government defines the
extent of the state or local government agencies' enforcement duties and
activities. (Currently, four local law enforcement agencies in California have
such agreements with the federal government.) Officers from the participating
state and local law enforcement agencies are trained by the U.S. Immigration and
Customs Enforcement (ICE) agency, which pays for some of the cost associated
with the training. In addition, subject to the availability of funds, U.S. ICE
also pays for most of the technology required to support state and local
immigration investigations.
Verifying Legal Status. Currently, the
United States has no universal national identity card, so verifying citizenship
or legal immigration status can be complex, even for native-born citizens.
Generally, several documents are needed for this purpose (for example, a U.S.
birth certificate to establish the basis for citizenship and a driver's license
with a photo to establish identity). However, many persons (especially children)
do not have a driver's license or other official photo identification.
Documenting citizenship for these persons may involve additional steps, such as
verifying the identity of a child's parents.
Most legal immigrants have an identification card from
the U.S. DHS to verify their status, such as a "green card" issued to immigrants
who are granted permanent residence in our country. However, they are not
required under federal law to have these documents in their possession at all
times. The U.S. DHS has developed a computer system that state and local
government agencies can use to verify immigration status, depending on the types
of immigration documents provided.
California Work Opportunity and Responsibility to
Kids (CalWORKs). The state's CalWORKs program provides cash assistance
and welfare-to-work services to low-income families with children. A parent may
be found to be ineligible for CalWORKs for various reasons. That could be
because it was determined that the parent is undocumented, has failed to comply
with certain program requirements, or had reached the four-year time limit
allowed for benefits. In such cases, cash aid is nonetheless provided to their
children. These are commonly known as child-only cases.
Restricted Scope Medi-Cal. In California,
the federal Medicaid program is administered by the Department of Health Care
Services as the California Medical Assistance Program (Medi-Cal). The Medi-Cal
Program provides health care services mainly to qualified low-income persons,
primarily consisting of families with children and the aged or disabled. Federal
law establishes some minimum requirements for state Medicaid programs regarding
the types of services offered and who is eligible to receive them. Illegal
aliens are eligible for a restricted scope of Medi-Cal benefits such as
emergency and birth delivery services.
Proposal
Some of the provisions of this initiative could be
subject to challenge in the courts and found unconstitutional and thus may not
go into effect. The description below assumes that these provisions would be
upheld in the courts if there was such a court challenge.
Changes in
Application Process for Public Benefits. This measure makes
changes to the application process for public benefits. Specifically, persons
fourteen years of age or older applying for public benefits would be required to
execute an affidavit under penalty of perjury declaring themselves a U.S.
citizen or qualified alien who was lawfully present in the country. Filing a
fraudulent affidavit would be a felony punishable by a term of five years in
state prison or a fine of $25,000.
Whenever an applicant stated that he or she was a
qualified alien, state or local agencies would be required under this measure to
verify this claim through SAVE or any equivalent program. Until such
verification was made, an applicant would be presumed eligible for public
benefits. Each state or local agency would be required to monitor SAVE for
application errors and significant delays and report them to the California
Department of Justice (state DOJ). If an agency accepted an application for
public benefits for a person whose status as a qualified alien could not be
confirmed, the agency would make a report including the person's identity to the
state DOJ. The state DOJ would provide a monthly compilation of all such reports
to U.S. DHS.
The proposed affidavit requirement applies to a wide
variety of public benefits for which citizenship status effects eligibility.
There are, however, specified exceptions, such as emergency medical care and
soup kitchens, for which affidavits would not be required.
Changes in Application Process to Receive Certain
Restricted Scope Medi-Cal Services. This measure would make changes to
the application process for persons to receive restricted scope Medi-Cal
services for birth delivery and related medical services. The applicants for
such services would submit a fingerprint as part of their application. The state
DOJ would determine a reasonable fee to cover the costs of processing the
fingerprint.
Eligibility Changes for Children in CalWORKs.
This measure would impose a two-year time limit on cash benefits for children
residing in households in which the parents are not eligible to receive CalWORKs
benefits because they are undocumented. Once CalWORKs benefits were eliminated,
some of these children would be eligible for aid through state- and
county-supported Foster Care or county general assistance programs.
Verification of Immigration Status. Under
current law, U.S. DHS can issue an immigration detainer for an individual in
state or local custody. An immigration detainer is a request that a state or
local law enforcement agency notify U.S. ICE so that it can take over custody
before that individual is released. Although state and local law enforcement
officials are required under federal law to send fingerprint information to the
federal government for all individuals who are arrested that could be used by
the federal government to determine an individual's immigration status, state
and local law enforcement agencies are not required under current state law to
verify the immigration status of individuals they arrest for crimes. Nor are
state and local agencies generally required under state law to transfer
individuals for whom detainers have been issued to federal authorities.
Under this measure, when a California state or local law
enforcement official has lawfully stopped, detained, or arrested an individual,
they would be authorized to request verification of the immigration status of
the individual from the federal government whenever they determined that
"reasonable suspicion" existed that the individual is unlawfully present in the
United States. The measure further requires that an arresting agency, upon
notification that an arrested individual is unlawfully present in the United
States, immediately verify with U.S. DHS whether an immigration detainer should
be issued for such an individual. A state or local law enforcement agency that
had such an individual with a detainer in their custody would be prohibited from
releasing them and would have to transfer them into federal custody, unless
otherwise directed by a court.
Federal Agreements With State and Local Law
Enforcement Officers. The measure requires the state DOJ to negotiate an
agreement with U.S. DHS or the U.S. DOJ for designated law enforcement officers
to perform certain functions of federal immigration officers within California,
such as serving warrants of arrest for immigration violations or issuing
immigration detainers. Under the measure, each state and local law enforcement
agency would have to designate one or more peace officers who would receive
training in these immigration enforcement duties. However, state and local law
enforcement agencies would only be required to pay for the training to the
extent that funds were appropriated for that purpose.
Policies Limiting Enforcement of Federal
Immigration Law. The measure makes it illegal for state and local
government agencies and officials to prohibit or restrict in any way (1)
inquiries by peace officers into the citizenship or immigration status of
persons, (2) further efforts by peace officers to verify their citizenship or
immigration status, or (3) the enforcement of criminal provisions of federal
alien registration laws. The measure allows any California citizen to file a
lawsuit to prohibit the enactment or enforcement of laws, ordinances,
regulations, or policies contrary to the above provisions.
Fiscal Effects
We have identified several potential major fiscal effects
of this measure, which we describe below.
Administrative Costs Related to New Application
Processes. If upheld in the courts, the provisions of this measure
making changes to the application process for federal, state, and local public
benefits could result in unknown significant ongoing costs to state and
local governments. These costs would be incurred to (1) collect, process, and
store affidavits; (2) verify the eligibility of certain persons applying for
certain benefits using the SAVE Program; (3) monitor SAVE for application errors
and significant delays and report application errors to the California DOJ;
(4) report certain applicants for public benefits to the state DOJ; and (5)
compile and forward reports to U.S. DHS. The measure would also result in
unknown significant one-time costs for modifications to existing benefit
application-processing systems in order to comply with the new requirement that
applicants submit affidavits.
Reduction in Public Benefit Costs. The
proposed two-year time limit on cash benefits for children residing with
undocumented parents would likely result in state savings in the hundreds
of millions annually in the CalWORKs program. These savings would be partially
offset by increased state and county costs for children who shifted into state-
and county-supported Foster Care or into county-run general assistance
programs.
The provisions changing the processes for applying for
public benefits could reduce state and local costs. Some persons who might
otherwise apply for public benefits would likely decide not to do so because of
the requirement that they execute an affidavit regarding their citizenship
status. Likewise, some persons might decide not to apply to receive certain
services under restricted scope Medi-Cal because of the requirement that they
submit a fingerprint with their application. Also, some persons who would
otherwise receive public benefits under the current application processes might
not be approved under the new procedures required by this measure. The amount of
savings from these provisions is unknown but is likely to be significant.
Increase in State and Local Criminal Justice System
Costs. The measure could increase criminal justice costs in a variety of
ways. For example, it could increase state and local costs to the extent that
law enforcement officials verify the immigration status of individuals they have
lawfully stopped, detained, or arrested, as well as detain arrested individuals
prior to transferring them to federal custody. These increased costs are
difficult to estimate, but could easily amount to the tens of millions of
dollars annually, depending on future actions by state and local officials. It
is also possible that state and local governments would redirect resources away
from other activities to accommodate additional workload resulting from the
measure.
In addition, the measure could result in state and local
costs in the millions of dollars to provide immigration-related training to
designated law enforcement officials pursuant to a required agreement between
the state DOJ and U.S. DHS or U.S. DOJ. However, as specified in the measure,
such costs would be incurred only to the extent funds are appropriated for that
purpose.
Summary of Fiscal Effects. This measure, if
upheld in the courts, would have the following fiscal effects on state and local
governments:
-
Unknown significant
one-time and ongoing costs to state and local governments due to changes in
the application process for public benefits, as well as unknown but likely
significant savings from decreased use of public benefits.
-
State savings in the
hundreds of millions annually from imposing a two-year time limit on
CalWORKs benefits for children of undocumented persons, partially offset by
state and county costs for children who shifted to Foster Care or county
general assistance programs.
-
Increased costs to the state and local criminal
justice system, potentially exceeding tens of millions of dollars annually,
for training of peace officers, verifying the immigration status of
individuals who are arrested, and detaining some of these persons until
their transfer to federal custody.
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