New Haven has not only the moral imperative, but the legal basis to issue identification cards to illegal immigrants. So concludes a study by Junta for Progressive Action. The study was the basis for recommendations announced earlier this month by City Hall to have government help immigrants adjust to life better in New Haven. The report includes a legal case for i.d. cards. Following is an excerpt from the report, about the i.d. cards. To read the full text of the report, which is a collaboration between Junta and a group of Yale law students working under the supervision of clinical professor Mike Wishnie, click here.
PROPOSAL 2:
CREATING NEW HAVEN MUNICIPAL IDENTIFICATION CARDS
Immigrants —”- undocumented ones in particular —-” have a difficult time maneuvering the labyrinth of social and legal barriers that they encounter in a new country. Many New Haven residents are not able to participate in local commerce and other forms of civic engagement, such as opening library and bank accounts, because they lack accepted forms of identification. Like new immigrants elsewhere, the growing Latino community in New Haven works primarily in a cash economy and its members are frequent targets for property and theft crimes. Providing residents who otherwise cannot produce proof of identity would help overcome the reluctance to report crimes they suffer or witness and more generally promote the integration of all New Haven residents into civic life.
No federal or state law bars a municipality such as New Haven from issuing its own identification cards to any resident who might wish to have one, regardless of the resident’s immigration status. Some Connecticut cities issue what they call a City Identification Card to their employees, and a Connecticut statute recognizes the possibility that municipalities in the state may issue their own identification cards. Moreover, cities across the country issue other kinds of
identification cards: for example, to city employees and for residential parking permits or the use of municipal parks or beaches. Each identification system is meant to denote the card-bearer as either a city resident or employee through the legitimacy of the city government. While its situation is unique as a city without a state, Washington, D.C., provides an encouraging example of a city that
issues its own identification cards.
A. Connecticut Statutes and Municipal Identification
Connecticut law grants each municipality broad police and spending powers to adopt measures in furtherance of the health, welfare, and public safety of its residents.30 Issuance of municipal identification cards to city residents is well within these traditional powers.
Nothing in state law requires proof of lawful immigration status as a condition for issuance of a municipal identification card. The only Connecticut provision addressing identification cards pertains to state identification cards. Connecticut General Statute § 1 Р1h discusses the procedure with which the state shall issue identity cards. It states that any person who does not posses a valid
driver’s license may apply for an identity card from the Department of Motor Vehicles. The statute states that an application for an identity card will include “1) The applicant’s name; (2) the
applicant’s address; (3) whether the address is permanent or temporary; (4) the applicant’s birth date; (5) notice to the applicant that false statements on such application are punishable under section 53a-157b; and (6) such other pertinent information as the Commissioner of Motor Vehicles deems necessary.” The statute does not require that applicants produce a Social Security number.
Moreover, the law does not bar municipalities from issuing their own identification cards, nor set any requirements of municipal identification cards if issued.
One state statute actually recognizes the possibility that a municipality will issue its own identification cards. The state public service company statute states that such a company may
request identification from a person opening an account. The statute defines identification as a Social Security number, the number of an identity card issued pursuant to section 1 – 1h, the number of a motor vehicle operator’s license issued pursuant to section 14 – 36, a valid passport issued by the United States or a foreign government, a resident alien card or an alien registration card issued by the United States Immigration and Naturalization Service, any
other valid forms of identification issued by the federal government or a state or municipal government, or any other means of identification approved by the Department of Public Utility
Control.
This statement presupposes the possibility that a Connecticut town may issue its own form of identification. It would be unlikely that the state would allow the Department of Public Utility Control to recognize forms of identification issued by the municipal government, while the state itself barred municipal governments from doing just that.
In fact, Connecticut municipalities have issued certain kinds of city identification cards. Both Hartford and Stamford issue city identification cards to their employees. These are not resident
ID cards, but they do act as official recognition by the city government of those persons who work and have access to city facilities. For the most part these IDs are meant to be used as a security measure to denote who may or may not use government property or gain entrance to a specific location. These IDs are common throughout the country, from Plano, Texas, to Long Beach,
California.
B. Other U.S. Cities
The National League of Cities has pointed to the example of Washington, D.C., in issuing its own identification cards for residents. D.C. requires that applicants for a non-Driver Identification Card prove that they are both over the age of 15 and residents of the district. They must also provide
proof of residency, proof of current residency, and a Social Security number. The special distinction of D.C. as a city without a state may make it an anomaly, for it has to assume the duties of both city
and state. No other cities identified to date issue such identification cards to residents.
However, identification cards issued by municipal governments to residents for specific purposes do exist. In addition to identification for city employees, many cities issue identification
cards for use of parks and recreation facilities. Westminster, Colorado, issues a recreation card to residents through its parks department, provided that the resident has a valid Colorado driver’s
license or a state-issued ID. The City of Florissant, Missouri, issues a Resident Card so that residents may have access to community centers, pools, an ice rink, and all other recreation facilities.
Card-bearers may also obtain picnic permits and resident rates for classes and room rentals. In order to obtain a card, the resident must provide a valid photo ID and an unpaid utility bill from the
previous month or a monthly business statement. Adventura, Florida, issues Identification Cards on behalf of the city so that residents can “obtain free access to City parks, events, and to enroll in City
sponsored programs.” In order to obtain a card, a resident must provide a proof of residency at the government center. Individuals can prove residency with a Florida driver’s license, Florida
identification card, voter’s registration card, passport, electric, telephone or utility bill, or mortgage deed or lease.
California recently began issuing identification cards to clarify which citizens had a right to possess marijuana for medical use. A 1996 law passed statewide authorized marijuana for medical
use under a doctor’s directions. Between the time the law passed, in 1996, and February 2005, there was no standard way to identify citizens who were legally permitted to use marijuana. During that
time, San Francisco issued identification cards to residents who qualified for the program. San Diego contemplated a similar plan but opted to wait for a state ID.
C. Federal law
Federal law presents no obstacle to the city’s creation of municipal ids. Issuance of municipal documents such as residential identification documents are within the traditional police
and social welfare powers of state and local governments, and federal law does not generally address such matters. Nothing in the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., limits the
authority of the City of New Haven to issue municipal identification documents to any city resident who applies, without regard to immigration status.
Until this year, federal law also did not forbid states from issuing driver’s licenses without regard to immigration status. This spring, however, Congress broke from its tradition of leaving to
state governments the regulation of any identification records they might choose to issue when it passed and President Bush signed into law the REAL ID Act of 2005. This Act for the first time
establishes as a matter of federal law a rule that states require proof of lawful immigration status as a condition for issuing a driver’s license or state identification card. The REAL ID Act does not 7 address documents other than a driver’s license or state-issued identification card, nor does it apply to jurisdictions other than states (such as counties, cities, towns, or villages).
Passage of the REAL ID Act confirms that there is no federal obstacle to issuance of a municipal identification card: no other federal immigration, criminal, or other statute bars issuance
of state or local government documents without regard to immigration status. If such a provision already existed, the REAL ID Act would have been superfluous. The REAL ID Act was meaningful,
however, because no other federal provision impeded states from establishing their own document requirements. In short, the Act in no way casts doubt on, and by its very narrowness re-affirms, the
longstanding authority of counties, cities, and towns to issue documents such as residential parking, beach or park access, or other identification records, without regard to immigration status. The
REAL ID Act confirms that there are no other federal immigration, criminal or other statutes that impose an immigration status requirement upon issuance of local identification records.
D. Protection of data In light of the law enforcement exceptions to state and federal privacy statutes, the City of New Haven will not be able to offer an iron-clad guarantee to applicants that information collected in connection with issuance of a municipal identification card would never be shared with any other
federal, state, or local agency, including the U.S. Department of Homeland Security. Nevertheless, we believe such information-sharing would not occur except in connection with investigations of
specific individuals already of interest to law enforcement. In this regard, municipal identification records would be no different from innumerable other records generated by state or local
governments, including property, taxation, public benefits, child welfare, and licensing records.
State and local agencies do not routinely forward such non-criminal records to law enforcement agencies, but in some circumstances may cooperate with investigations of specific individuals upon
request. Moreover, experience with “Matricula Consular” cards issued by the Mexican Embassy and Individual Taxpayer Identification Numbers (ITINs) issued by the U.S. Internal Revenue Service demonstrates that undocumented immigrants will not hesitate to apply for a municipal
identification card, even if the undocumented are among the principal users of the card.
First, the City of New Haven and its agencies are “public agencies,” and records related to application for or issuance of a municipal identification card would constitute “public records or files”
as those terms are defined in Connecticut’s Freedom of Information Act. The city would properly maintain the confidentiality of such records, however, under the exemption for disclosure of
“Personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy.” To the extent the municipal identification program were adopted as a public
safety measure, application and issuance records may also be exempt as “[r]ecords of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime.” The city would thus properly refuse most requests to share municipal identification card records.
Second, it is unlikely that the Department of Homeland Security would make a blanket request for all records relating to municipal identification cards, for instance in connection with a
targeted investigation of undocumented immigrants in New Haven. Even before the September 11 terrorist attacks, federal immigration authorities focused their limited enforcement resources on
anti-smuggling initiatives and apprehension and removal of persons with criminal convictions.
Since September 11, these immigration enforcement resources have been directed almost exclusively at counter-terrorism programs, including smuggling operations, surveys of “critical infrastructure”
facilities, and initiatives focused on men from predominantly Muslim, Arab, or South Asian countries, as well as a continuing emphasis on removal of “criminal aliens”. For instance, DHS has
almost ceased entirely its practice of worksite raids, issuing only three notices of intent to fine to all employers in the nation in 2004. There is no legal barrier to DHS foregoing its counter-terrorism priorities in favor of investigating undocumented immigrants in New Haven, but such a shift of resources is highly unlikely, even with whatever access to city records DHS might be able to obtain.
Finally, two important precedents indicate that even when identification documents are made available on a generalized basis, with undocumented immigrants among the most frequent
applicants, immigrants have not hesitated to seek such records for fear that immigration authorities may one day obtain access to records about applicants. In recent years, the Mexican and
Guatemalan embassies and consulates have begun to issue a form of identification record (“matricula consular”) to their nationals, to facilitate access to bank accounts and other services for which their
nationals are eligible (see Proposal 1, above). The possibility that DHS might seek access to bank records for account-holders who presented such consular identification records, in aid of immigration
enforcement programs, has not deterred large numbers of Mexican and Guatemalan nationals from obtaining these records and using them to open bank accounts or obtain other services for which they
are eligible.
For even longer, the U.S. Internal Revenue Service has issued Individual Taxpayer Identification Numbers (ITINs) “to individuals who are required to have a U.S. taxpayer identification number but who do not have, and are not eligible to obtain a Social Security Number (SSN).” Such persons include undocumented immigrants who earn wage income and wish to file an income tax return but have no SSN. For such persons, IRS issue ITINs “regardless of immigration
status.” IRS offers no guarantee that information regarding ITIN applications will not be shared with immigration authorities, but many thousand undocumented immigrants have nevertheless
lawfully obtained ITINs and filed an income tax return.
Conclusion
Connecticut does not bar cities from creating their own identity cards. No statute states that only the state can issue identification cards. In fact, C.G.S.A. § 16 Р49e recognizes that cities may
actually produce their own identification cards. If the state authorizes public companies to recognize municipal IDs, it would have little legal recourse to object to New Haven actually creating such an ID.
City governments throughout Connecticut and the U.S. issue IDs for a wide range of reasons. These actions have set a precedent that New Haven can follow, especially for IDs for intra-city affairs: parks, recreation centers, and municipal centers. The easiest path for New Haven would be to make no demands for recognition from other state or municipal governments for New Haven identification cards.
The City may properly withhold municipal identification information from disclosure under state law. Consistent with its enforcement priorities, before the September 11 attacks and even more so afterwards, DHS is highly unlikely to direct scarce resources towards an effort to compel the city to reveal any such records in connection with broad enforcement operation in New Haven. And experience with consular identification cards and ITINs indicates that there will be strong demand for a municipal identification, notwithstanding the inability of the city to guarantee that such records would never be shared with federal immigration authorities.
The invention of such an identification card would be new for New Haven, but it could have untold benefits for the city’s relationship with its residents and presents little risk for the city’s
relationship with the state. The city should take the lead and launch, at the very least, a pilot program to create a New Haven resident ID.