The Department of Justice (DOJ) issued an opinion this week that an old welfare law that could lead every state in the union to reporting undocumented immigrants to the federal government. Politico noted upon publication of the opinion that the DOJ can then threaten to withhold states federal funds if they fail to comply with the mandate. The trigger doesn’t involve rental assistance rather it involves a state’s participation in two of the largest safety-net programs in the country: Temporary Assistance for Needy Families and Supplemental Security Income. Essentially every state gets funding from both programs.
Here’s What’s Changing
Until now, immigration officials applied the requirement narrowly. This meant that only the specific state agency responsible for administering a particular federal program such as the TANF office needed to report any individual it knew was unlawfully present. The DOJ’s Office of Legal Counsel (OLC) effectively rejected that understanding of the law on Wednesday. Under the new legal opinion, if a state “accepts federal funds for the programs, the knowledge requirement attaches to the state government itself and not just to the agency that administers the federal program.” So now, presumably, a state’s DMV or public health agency would be just as responsible for reporting individuals it knows are here illegally as its welfare office would be.
The OLC memo issued during the Clinton era had offered a much narrower reading of the statute’s use of “state.”
The opinion also changes the standard by which a state “knows” that an individual is here unlawfully. Under the previous standard, there generally needed to be some formal, reviewable determination by immigration officials before the reporting requirement would kick in. The OLC said that standard had always been “more rigorous than what the statute requires.” Under the new opinion, a state could have knowledge in several circumstances: if DHS informs the state itself, if an individual acknowledges that they entered the country illegally and can’t point to a valid reason for being in the current status, if immigration records indicate that someone’s status has lapsed, or if the documents an individual provides themselves establish that they are here unlawfully. The opinion would also allow “willful blindness” to qualify as knowledge. But it doesn’t suggest that state workers begin investigating individuals’ immigration status whenever they suspect it might be illegal.
A Few Things To Keep In Mind
First, this change only goes forward. The DOJ said that it will not penalize states for having relied on the 1998 opinion previously, but federal agencies are now free to adjust their grant agreements with states related to TANF and SSI moving forward to reflect the new interpretation.
Second, an OLC opinion isn’t a law; it also doesn’t come from a judge. It binds the executive branch. So while federal agencies must follow the opinion as to how the law should be interpreted, that interpretation doesn’t go apply to the states until a court agrees with it. This doesn’t suddenly place a requirement on states. But the administration can (and will) use this opinion moving forward as justification for conditioning future TANF and SSI funding on states agreeing to comply with the mandate, and it’s already being promised push-back from several state attorneys general.
As always, ILBSG actively monitors ongoing U.S. immigration news. If you have questions about any U.S. immigration related issue, contact us. Working with an experienced attorney ensures you get the right advice based on the most recent laws. In an ever-evolving immigration policy landscape, it’s particularly critical.
