Judge Jeffrey Sherlock has granted a partial preliminary injunction, issuing “limiting constructions” on the ways that the State of Montana can implement LR-121. You can download the order here. This order is significant because it constitutes the first decision in the State of Montana to address the constitutionality of any state-level enforcement of federal immigration laws.

This order recognizes two important failings in the referendum that was referred to Montana voters by the legislature:

• The state is barred from relying solely on the federal Systematic Alien Verification for Entitlements (“SAVE”) system to make determinations about a person’s eligibility for benefits. As stated in our Complaint, the SAVE system is simply not meant to be used to make a determination of a person’s legal status in the country, which is precisely what LR-121 calls for. The court held that it “would be inappropriate for the State to merely rely on the SAVE program to make its determination.” Now, if the state wants to utilize the SAVE system, it must do so in conjunction with a lawful method of verifying a person’s citizenship or immigration status. This leaves some unanswered questions about exactly what methods the state will use, but constitutes a shift in the way the state had planned to implement the law.

• The court has stricken unconstitutional language from the definition of “illegal alien” under the law. As we argued, LR-121 conflicts with federal law by saying that anyone who illegally entered the country is an “illegal alien” and will be denied state services — even if they now have green cards. Last week we filed nine affidavits from immigrants who illegally entered the United States, but do not illegally remain in the United States, and challenged how LR-121 would impact them. The court recognized that this definition conflicts with federal laws, and found “it appropriate that a preliminary injunction be issued to prevent the implementation of the offending language of LR-121.”

The court concluded its order by stating: ”There are obvious deficiencies in LR 121 that should be addressed by the legislature. If not, this Court will address them as this case moves forward.”

It is important to note that when issuing this decision, the court did not yet have an opportunity to review or consider the arguments from our recent response to the state’s motion to dismiss.

This preliminary injunction now alters the manner that the state can apply the law while this lawsuit is pending. Meanwhile, the remainder of the litigation continues forward.

You can read the Associated Press coverage here.

As a reminder: This litigation is being done on a pro bono basis by Brian J. Miller of Morrison, Motl and Sherwood, PLLP, and Shahid Haque-Hausrath of the Border Crossing Law Firm, P.C. (also President of MIJA).

We are proud to stand up against LR-121. This litigation is costly and time-consuming, and we need your help. Please consider sending us a donation to support this lawsuit.

This year, we have a unique opportunity to pass comprehensive immigration reform legislation to finally fix blatant gaps in coverage and provide a pathway to citizenship for millions of undocumented immigrants — including thousands who live here in Montana. However, we need your help!

Despite voting incorrectly on other immigration bills that reached their desks, we have every reason to believe that Senators Max Baucus and Jon Tester are openly considering the bipartisan legislation that will soon be making its way through Congress. Unfortunately, they are hearing frequently from vocal anti-immigrant activists.

We need to counter their messaging with our own request for fair and humane immigration policies, including a pathway to citizenship!

Please contact our Senators today!

Senator Max Baucus

(202) 224-2652

E-mail Senator Baucus

and

Senator Jon Tester

(202) 224-2644

E-mail Senator Tester

While we actively encourage our members and allies to contact our Senators, we also want to be clear — passing comprehensive immigration reform is the right thing to do for Montana and for the country. It is also an idea that has bipartisan support. Indeed, even conservatives like Shawn Hannity, Lindsey Graham, and Rand Paul are supporting a path to legalize the status of immigrants who are here in the country illegally.

The correct vote on immigration reform should not be dependent on the largest numbers of constituents who call in, and we won’t tolerate this as an excuse for a bad vote. Since 2009, over 26 anti-immigrant bills have been proposed in the Montana Legislature, and Democrats have had the fortitude to take caucus positions opposing these prejudiced laws.

If every single Democrat in the Montana Legislature can do the right thing despite public sentiment to the contrary, so can our Senators.

According to 2010 census statistics, about 2% of Montana’s population was born outside the United States (20,031 people). About 57% of them (or 11,000 people) are citizens who can vote. The Latino population in Montana has grown to 2.9%, of 28,000 people. These are sizable and important voting blocks, even in the state of Montana.

Over the next several months, we’ll be meeting with our congressional delegations to discuss the need for immigration reform. We hope you will join us in making the voices for immigration reform heard!

We’d like to update you on the progress of the Montana Immigrant Justice Alliance (“MIJA”)’s lawsuit to challenge and enjoin implementation of LR-121. We filed this lawsuit along with our co-Plaintiffs MEA-MFT and Alisha Blair (a 22 year old U.S. citizen who would be caught up in this scheme because she does not have proof of her citizenship).

On February 7th, the Honorable Judge Jeffrey Sherlock held a hearing on our request to enjoin the law, so that it cannot be enforced while our lawsuit is pending. Plaintiff Alisha Blair courageously testified about how LR-121 would affect her . She was joined by Andrea Carlson, a member of MIJA who was recently in removal proceedings until immigration attorney Shahid Haque-Hausrath proved her citizenship. Ms. Carlson was recently in the news herself when she took her oath of citizenship.

As of today, no decision has been made on our request to enjoin LR-121. In the meantime, the State of Montana filed a motion to dismiss our lawsuit for lack of standing — contending that the Plaintiffs have not demonstrated that anyone would be harmed by LR-121.

Today, we filed our response to challenge the state’s assertions, attaching affidavits of nine MIJA members who came forward to tell the court how they would be injured by LR-121. These affidavits share compelling stories about the real human beings who will be caught up in this badly designed law. Several of these members entered the United States illegally, but went through long and difficult processes to get their green cards. They now live here legally with their families. Nevertheless, LR-121 conflicts with federal law by saying that anyone who illegally entered the country is an “illegal alien” and will be denied state services — even if they now have green cards.

At our main litigation page, you can download copies of the complaint and briefs. You can also learn more about the basis for our legal challenge, asserting the violation of the right to privacy, violation of due process, violation of the equal protection clause, and preemption by federal law.

This litigation is being done on a pro bono basis by Brian J. Miller of Morrison, Motl and Sherwood, PLLP, and Shahid Haque-Hausrath of the Border Crossing Law Firm, P.C. (also President of MIJA).

We are proud to stand up against LR-121. This litigation is costly and time-consuming, and we need your help. Please consider sending us a donation to support this lawsuit.

Stay tuned for more updates as this litigation develops!

This is a crosspost from the Border Crossing Law Firm’s blog:

The U.S. government often tries to deport U.S. citizens. This is a harsh and inescapable fact, and it is also a difficult one for many people to believe. However, it almost happened right here in the State of Montana. Thankfully, the Border Crossing Law Firm, P.C. stepped in to prove our client’s citizenship and terminate the deportation proceedings against her. The Immigration Judge just issued a decision ordering that the deportation process be stopped because we established U.S. citizenship.

Our client was unaware of her U.S. citizenship until Shahid Haque-Hausrath, who represented her in Immigration Court, looked into her family history and discovered that she had automatically become a U.S. citizen at birth. She was married to a U.S. citizen, and obtained a two-year conditional green card through this marriage. However, when the marriage began to falter, U.S. Citizenship and Immigration Services (“USCIS”) terminated her status and put her into deportation or “removal” proceedings. Not only was USCIS wrong to try and take away her green card, but we were able to show that she never needed one in the first place, because she is a U.S. citizen.

The client’s father was a native-born U.S. citizen who enlisted in the United States Army when he was only 18 years old, and later re-enlisted in the army only a few weeks after the attack on Pearl Harbor. He served honorably and received several accommodations and citations during his service. He was stationed in England when he met our client’s mother, got married, and had a child — our client.

Under our immigration laws, a child who is born abroad to one U.S. citizen parent may automatically become a U.S. citizen at birth if certain conditions are met. The laws regarding transmission of citizenship have changed many times over the years. To determine acquisition of U.S. citizenship at birth, one looks to the law in place when the person was born. In this case, to transfer citizenship, our client’s father had to have had 10 years of residence in the U.S., at least five of which were after he reached the age of 12.

Military records established these facts very clearly, but the Department of Homeland Security (“DHS”) nevertheless fought us every step of the way. Since November, we traded six legal briefs arguing the facts and legal issues. Today, we received the Immigration Judge’s decision agreeing with virtually all of our arguments, finding that we proved citizenship, and terminating removal proceedings.

This case highlights one of the reasons that we filed a lawsuit to challenge LR-121, Montana’s “proof of citizenship” referendum. There are many other Montanans like our client who are U.S. citizens but don’t have documentation to prove it. Under LR-121, they could be wrongly denied state services that they are entitled to, and the law doesn’t provide any way that they can appeal the denial of these services.

Our client is overjoyed with the news. After over a year of anxiety while facing deportation, she can finally rest easy. And, of course, she can fully enjoy all the rights and privileges of being a U.S. citizen.

We have some exciting news: Judge Sherlock has ordered the government Defendants to appear on February 7, 2013 at 10:00 am to “show cause why Plaintiffs’ application for a preliminary injunction should not be granted.”

You can download a copy of the order here.

As we previously reported, on December 7, 2012 the Montana Immigrant Justice Alliance (“MIJA”) filed a lawsuit in Montana’s First Judicial District Court to challenge and enjoin implementation of LR-121, along with our co-Plaintiffs MEA-MFT and Alisha Blair (a U.S. citizen who would likely be wrongly denied services under the law). We are challenging the constitutionality of LR-121 because it violates the rights of all Montana residents, not just undocumented immigrants.

We are seeking a temporary restraining order and preliminary injunction to prevent the law from being put into effect while this litigation is pending, and are looking forward to our first hearing in this case.

Please check out our LR-121 litigation page explaining what LR-121 is, why we filed a lawsuit to challenge the law, and how the law impacts all Montanans.

On December 7, 2012, the Montana Immigrant Justice Alliance (“MIJA”) filed a lawsuit in Montana’s First Judicial District Court to challenge and enjoin implementation of LR-121, along with our co-Plaintiffs MEA-MFT and Alisha Blair (a U.S. citizen who would likely be wrongly denied services under the law). The case has been assigned to the Honorable Judge Jeffrey M. Sherlock in Helena, Montana. You can download a copy of the complaint here, and read our initial legal brief here. Our complaint sets forth five separate counts asserting the violation of the right to privacy, violation of due process, violation of the equal protection clause, and preemption by federal law.

We are challenging the constitutionality of LR-121 because of the way it violates the rights of all Montana residents, not just undocumented immigrants. We are seeking a temporary restraining order and preliminary injunction to prevent the law from being put into effect while this litigation is pending. Unless it is enjoined, the law is scheduled to be implemented on January 1, 2012.

Members of the press: Please download our press release, summarizing the essential points of this lawsuit.

Please check out our LR-121 litigation page explaining what LR-121 is, why we filed a lawsuit to challenge the law, and how the law impacts all Montanans.

This litigation is being done on a pro bono basis by Brian J. Miller of Morrison, Motl and Sherwood, PLLP, and Shahid Haque-Hausrath of the Border Crossing Law Firm, P.C. (also Executive Director of MIJA).

We are proud to stand up against LR-121. However, this litigation will be difficult and time-consuming, and we need your help. Please consider sending us a donation to support this lawsuit.

Stay tuned for more updates as this litigation develops!

On October 29, 2012, Professor Alan Hansen of Carroll College hosted a forum to discuss LR-121, the “proof of citizenship” referendum. The speakers were Shahid Haque-Hausrath (Executive Director of MIJA), Moe Wosepka (Executive Director of the Montana Catholic Conference), and Professor Jeremy Johnson. HCTV recorded the event for broadcast, and has approved re-posting the event online. Please check out this video for an analysis of LR-121 and immigration policy in Montana from multiple different perspectives (the video may take a minute to load).

Families who want to come to America, work in America, raise families in America ought to be welcome because that’s the thread that has made this blanket so warm in this country. We need to have a system that allows people a path to citizenship. That’s the way we’ve done it for the last 150 years.” - Governor Brian Schweitzer, 2008.

Governor Brian Schweitzer is well known for speaking his mind, and as he approaches the end of his term in office, he remains one of the most popular governors in the country. What many Montanans may not know is that Governor Schweitzer also has a very unique and refreshing perspective on the issue of immigration.

Governor Schweitzer is half Irish and half Ukranian, and when he recently delivered the keynote address at the Ohio Democratic Party’s annual dinner, he told the story of his grandmother’s illegal entry to the United States. She used a passport and visa that was meant for her sister, and entered the United States through what we would call “visa fraud” today. The story is told in riveting fashion by the Governor:

Governor Schweitzer has been very open about how his family history has impacted his views on immigration, and many of us have been fortunate enough to hear him tell this story before. He also shared his thoughts on immigration in an interview with the Iowa Independent in 2008, where he also talked about his father’s side of the family:

My father’s family were homesteaders in Montana and they came from Ukraine but they were German speakers. They were so-called German-speaking Russians.

While his parents and their parents had never been to Germany, when World War I came around, they were discriminated against across this country and they passed the Sedition Act and made it against the law to speak or read in German in Montana.

My father served in World War II, but since German was his first language, there was always a concern about ‘Is he a patriot or not?’

And my grandmother, she never learned to speak English, only German. My parents, they kind of kept us away from her because they saw it as a detriment to be able to speak German.

Governor Schweitzer notes that the disfavored immigrant groups have changed over the years, depending on social and political factors.

Some say that the derogatory term “wop” actually stands for “without papers” and that they referred to all of the Italian immigrants for a time that way.

. . .

My first day of school, I’m going to school, and my mother sits me down — and I just went to a little country school, nine kids in my class — and she said, because by this time it’s 1961 and we are in the Cold War, “If anyone asks you about the name Schweitzer, don’t tell them we’re Russian, tell them we’re German.”

So it swings back and forth in this country, and it has for a long time.

Immigration policy is not a debate that just happened this year. We’ve been debating it for 150 years. There’s an ebb and flow. The bottom line is almost everybody here comes from an immigrant family including myself.

In a time when many politicians are quick to attack and scapegoat new immigrants, we are grateful that Governor Schweitzer has internalized the experiences of his youth and understands that we must be welcoming to our newest immigrants.

As Governor Schweitzer states of those who would deport everyone who is the product of illegal immigration:

On that basis Mitt Romney would send the Governor of Montana back to Ireland. That’s my story. What is yours?

Thanks to Governor Schweitzer for his willingness to share his thoughts on immigration and the need for reform.

Our Executive Director, Shahid Haque-Hausrath, had fun talking to Kev Hamm for this week’s episode of his podcast, PoliticktickBOOM!

We discussed LR-121, the anti-immigrant referendum, and much more.

Check it out!

LR-121 is a referendum that will be appearing on ballots throughout Montana on November 6, 2012. LR-121 aims to deny a wide variety of state services to Montana residents who cannot prove that they are U.S. Citizens or documented immigrants. This post is designed to serve as a resource on the referendum, discussing how it came to appear on the ballot, what it seeks to do, and why it will be so costly and damaging to the state.

History of the Referendum

Unlike most referendums that are brought by the public and require signature gathering to be placed on the ballot, LR-121 was actually a legislative referral. The Montana Legislature passed HB 638, a bill brought by Rep. David Howard (R) to place this issue on the ballot as a referendum. Therefore, by operation of law, the referendum will now be brought before Montana voters in the general election.

Rep. David Howard, the proponent of this referendum, had unsuccessfully carried 3 bills in the 2009 session and 6 other bills in the 2011 session to attempt to bring the state into the business of enforcing federal immigration laws. All of these other bills were defeated, but his legislative referendum managed to pass both the House and Senate. The votes were almost completely along party lines, with Democrats voting against the referendum and Republicans voting in support. Two notable exceptions were Sen. Joe Balyeat (R) and Rep. Liz Bangerter (R) — both of whom split with their party to oppose the referendum.

The Language of LR-121 to Appear on the Ballot

The Montana Secretary of State has certified the following language to appear on the ballot:

AN ACT DENYING CERTAIN STATE-FUNDED SERVICES TO ILLEGAL ALIENS; ESTABLISHING PROCEDURES FOR DETERMINING A PERSON’S CITIZENSHIP STATUS; PROVIDING THAT THE PROPOSED ACT BE SUBMITTED TO THE QUALIFIED ELECTORS OF MONTANA; AND PROVIDING AN EFFECTIVE DATE AND AN APPLICABILITY DATE.

LR-121 prohibits providing state services to people who are not U.S. citizens and who have unlawfully entered or unlawfully remained in the United States. Under LR-121, every individual seeking a state service, such as applying for any state licenses, state employment, unemployment or disability benefits, or aid for university students, must provide evidence of U.S. citizenship or lawful alien status, and/or have their status verified through federal databases. State agencies must notify the U.S. Department of Homeland Security of noncitizens who have unlawfully entered or remained in the U.S. and who have applied for state services.

The costs associated with verifying U.S. citizenship or lawful alien status will vary by agency and cannot be precisely determined. However, on-going costs may include: hiring and training state personnel to use various federal databases; software, hardware and search charges; and information assessment and management costs.

[] FOR denying certain state services to illegal aliens.

[] AGAINST denying certain state services to illegal aliens.

In layman’s terms, this bill would insert the federal government between almost every agency in this state and the services they provide to Montana residents. As discussed below, this bill is part of a misguided effort to use state resources to enforce federal immigration laws, and will be costly and damaging to the state.

As you can see, this referendum includes the term “illegal alien” in some sections. Please refer to this resource for why the term “illegal alien” is offensive and inaccurate.

What State Services Will Be Denied to Unauthorized Immigrants?

The bill would require employees of the State of Montana to serve as federal immigration agents, attempt to determine the immigration status of applicants for services, and deny these services to undocumented immigrants. They will be required to use a costly “pay-per-use” federal database to perform these checks. These are the services that are to be denied:

Employment with a state agency. This referendum will require all state agencies to check immigration status and deny employment to anyone who cannot prove U.S. citizenship or authorized status. There are already federal laws requiring that all applicants for employment complete an Employment Verification Form before starting work. Most of you are probably familiar with the process — you present certain forms of ID to prove eligibility to work, and then you sign a form. The federal government has not imposed any additional requirements or mandated the use of their federal system to verify work authorization. Nevertheless, this referendum seeks to voluntary commit the state to using a costly and time-consuming federal database to screen employees.

Ability to attend any public university in the state. There is no federal law that prohibits undocumented immigrants from attending college. Most states allow undocumented students to attend college, although they may be required to pay tuition as non-residents of the state. Under Montana’s current laws, “[t]he university system is open to all people, subject to such uniform regulations as the regents deem proper.” This referendum would change this and require all students to prove their citizenship or immigration status, and be denied admission if they cannot do so. Somewhat redundantly, the referendum would also cut off an undocumented student’s ability to get student financial assistance. Worse, it would require the state to turn any undocumented students over to the federal immigration authorities!

Ability to get a state license or permit to practice any trade or profession. For the first time, this referendum would require state agencies that issue licenses or permits to screen applicants for immigration status. The requirement would apply to all licenses and permits provided in Title 37, which includes over 75 different professions from barbers to massage therapists and real estate brokers. One can only imagine the number of applicants that state employees will now be required to screen. Since current procedures do not require any such screening, this will likely require some significant changes in the licensing and permitting process.

Ability to get unemployment insurance benefits. The referendum would specifically prohibit undocumented aliens from receiving unemployment insurance benefits as provided under law.

Assistance with vocational rehabilitation. Montana law provides for some assistance to help “a person with a disability to enable the person to the extent possible to become independent and productive or employable.” The referendum would strip undocumented immigrants with such disabilities from getting any rehabilitation.

Services for victims of crime. Under Montana law, there is a Crime Victim Compensation fund to “help innocent crime victims with crime-related medical expenses.” This includes “lost wages and medical and funeral expenses incurred as the result of personal injury crimes. These crimes include homicide, rape, domestic violence, stalking, assault, child sexual and physical abuse, and drunk driving.” The referendum would prevent victims of crime who are undocumented immigrants from getting help.

Services for the physically disabled. The referendum oddly seeks to eliminate access to two types of services for physically disabled individuals. The referendum states that it will deny “services for the physically disabled, as provided in Title 53, chapter 19, parts 3 and 4.” These are the parts relating to “a program to make specialized telecommunications equipment and services available to persons with disabilities” and “newborn hearing screenings.” It is troubling that the referendum would deny access to necessary equipment for people with disabilities, and it is quite disturbing that it seeks to deny a simple hearing test to newborns. It goes without saying that most newborns in Montana are likely U.S. citizens by virtue of being born in this country.

Ability to get a grant. Finally, the referendum seeks to limit the ability to get any kind of grant as provided in Title 90 of the Code.

It should be noted that LR 121 appears to be drafted to deliberately create the impression that its scope is even broader than it actually is. At certain points, the language of the legislative referendum appears sweeping, seemingly reaching to all state services provided to undocumented aliens. Public perception of a law often shapes its implementation, and the broad language of the referendum will have lasting effects beyond the specific areas outlined above.

How Will the State Verify the Legal Status of Applicants for Services?

This referendum would require the State of Montana to check a costly federal database before granting services to Montana residents. Montanans have spent years fighting this level of federal intrusion into our day-to-day activities, as evidenced by the vocal opposition to federal REAL ID laws. However, this referendum would insert a federal government database into almost every agency of the State of Montana — and require us to pay for its use!

The federal database that would be used is the Systematic Alien Verification for Entitlements (“SAVE”) system. The SAVE system is not free. The federal government charges between $.50 and $2.00 for each search in the system. The minimum cost is $.50. When you consider the numbers of applicants for state services, this could quickly add up to millions of dollars. State agencies will also waste time and resources training employees on how to use this system, and checking it before allowing access to a wide variety of state services.

The SAVE system is not a fully computerized system that provides immediate results. In actuality, this system often fails to ascertain immigration status at the “initial verification” stage, and a secondary or third inspection is required.

A report from U.S. Citizenship and Immigration Services (“USCIS”) states that 6% of its checks are not resolved immediately and require secondary or third inspection. USCIS estimates that secondary inspection can take up to 3-5 working days to complete. In actuality, applicants have complained of delays of over 15 days.

Agencies may be required to process paperwork in the third inspection stage, including a G-845S Document Verification Request. At this stage, the agency has to make copies of all of the applicant’s immigration papers, fill out a form, and send it to USCIS. Then, the agency must wait 10-20 working days or longer for a response.

The SAVE System is Similar to REAL ID

Requiring that our state agencies use federal systems to verify access to benefits has an impact on our state sovereignty. The mandatory use of the SAVE system was a major part of the federal REAL ID law that Governor Schweitzer and the Montana legislature resoundingly rejected in 2007.

It is important for Montanans to realize that this referendum imposes even more sweeping and burdensome requirements than REAL ID.

We Don’t Need this Law in Montana

Montana is one of the states with the least numbers of immigrants in the whole country. Montanans must consider if enforcing federal immigration laws are worth the delays in service and extra cost to the state.

During the 2009 and 2011 legislative sessions, the proponents of anti-immigrant legislation estimated that there are no more than 4,000 undocumented immigrants in Montana. One can safely assume that far fewer are actually accessing state services. It would cost the State of Montana far more to implement this law than we are “losing” by providing services to undocumented immigrants.

Fiscal Impact of LR-121

It should be noted that state agencies were asked to complete some fiscal statements, which were woefully inadequate and not well-reasoned. The true impact of LR-121 will reach far beyond the limited analysis in these agency reports. You can find a copy of those agency fiscal reports here.

Who is Currently Working to Oppose the Referendum?

For the past six years, an ad hoc coalition of organizations and individuals has worked to defeat over 25 anti-immigrant proposals at the past three legislative sessions. This coalition has included the Montana Human Rights Network, the Gallatin Valley Human Rights Taskforce, the ACLU of Montana, the Border Crossing Law Firm, P.C., Montana Coalition Against Domestic and Sexual Violence, the Teamsters, SEIU Healthcare 775 NW, members of the faith community, individual activists, concerned members of the community, and immigration attorneys. Without specific funding, the coalition has operated on in-kind contributions of staff time, printing, etc. from organizations as well as volunteer hours and resources from individuals.

Many members of this coalition have come back together in an effort to raise resources and run a campaign to educate Montana voters and defeat LR-121. Please contact me if you can provide any help to defeat LR-121.