Category: Montana

On May 9, 2013, I participated in a panel discussion about immigrant victims of domestic abuse and sex trafficking victims in rural Montana.  The focus was on the remedies available to these victims, and issues surrounding lawyering and advocating for these groups.  The other panelists were Laurie Grygiel of the Montana Legal Services Association, Cynthia Wolken of the Montana Human Rights Commission, and Representative Jenifer Gursky.  The University of Montana Law School has made a video of this event available for all to view.

We have assisted numerous immigrant victims of domestic abuse with petitions under the Violence Against Women Act (“VAWA”), including both male and female victims.  Abuse under VAWA can include physical violence or extreme emotional cruelty.  In this panel, we discuss some of the common characteristics of these abusive relationships, the difficulties these victims can experience when law enforcement actually works against them, and we go into detail on one particular case study.

Immigrant victims of domestic abuse may enter the country on a marriage or fiancee visa, or enter the country illegally or overstay a different visa. They ultimately enter into a genuine, bona-fide marriage, which ends due to the abuse.

Abusive U.S. citizens often use their spouse’s immigration status as a way to exert undue control over them — isolating them from society, being physically and emotionally abusive, and threatening to have them deported if they ever report the abuse.  Often, there are children in the household, and the abused spouse doesn’t dare risk being deported and leaving the children in the hands of the abusive spouse.

There are many ways that an abusive spouse can hold someone’s immigration status over their head as a constant threat.  Often times, the spouse simply doesn’t file immigration paperwork, leaving the immigrant spouse in limbo.  If the spouse entered on a fiancee visa, which requires that the marriage occur within 90 days, the abuser can deliberately delay the marriage and cause the immigrant spouse to become out of status.  Or, even if they complete the process and get a green card, new marriages have a two-year “conditional” residence period.  During that time, an immigrant spouse could lose her status if they get divorced or separated, giving the abuser undue control during that time period.

Sometimes, we hear of immigrant victims of domestic violence referred to as “mail order brides.”  As we discussed at the panel, except in the most rare instances, the term is really a misnomer, as it is not representative of most relationships or the manner in which most immigrant spouses came to the United States.  In addition, it has some offensive and sexist undertones. First, it implies that the legal burden to get a visa for a spouse is easy. That is certainly not true, as one who goes through normal immigration channels to obtain entry on a fiancee or marriage visa has to prove a genuine relationship, and this can often be difficult.  In our practice, we have often dealt with legitimate marriage petitions that get wrongly denied because they don’t fit into traditional stereotypes.

The term also implies that the women are complicit in wanting to enter into fake marriages just for the visa. In my experience, the spouse has typically wanted to enter into a genuine and legitimate relationship, but the relationship ends through no fault of their own.While there may be rare instances in which women have literally posed in magazines, been trafficked into the country, and ultimately sold into marriage, the broad usage of the term goes much farther than this limited scenario.  Language is important because it shapes perspective and policy.  The term is currently being used to malign legitimate relationships that may appear “suspicious” to someone based on their own preconceived ideas, but is actually just a form of stereotyping.  Therefore, we encourage readers to either limit the term to the small instances where it would be correct, or simply stop using the term.

If you are the victim of domestic abuse, please contact us and we will try to help.

Home Ground Radio, hosted by Brian Kahn, is one of the most intellectually stimulating radio programs in the state of Montana.   We were proud to be asked to appear on the show to discuss immigration issues, and found it to be a great experience.  The interview was described as follows:

During the 2012 election, illegal immigration was a red-hot topic. But we didn’t learn much about who illegal immigrants are, why they come to America, or the pros and cons of allowing them to stay. Shahid Haque provides some context.

You can listen to the whole interview here:

Home Ground Radio is aired on Montana Public Radio and Yellowstone Public Radio. You can also listen to the archive  of programs over the years.

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.”

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. On June 20, 2014, Judge Jeffrey Sherlock of the First Judicial District Court struck down the vast majority of law, which would have required state agencies to determine an applicant’s citizenship or immigration status before granting a wide variety of state services. The law would have required denial of serves like unemployment insurance benefits, licenses to practice trades or professions, enrollment in state universities, crime victim services, and infant hearing screenings to those who cannot prove their citizenship or immigration status.

Litigation Updates:

12/19/2012 Update: 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.”

01/28/2013 Update: We are pleased that two of the defendants in this litigation do not oppose our request for a preliminary injunction to stop LR-121 from being implemented. The Board of Regents and Commissioner of Higher Education are asserting that LR-121 is unconstitutional because it infringes on their authority to control the Montana University System, and we agree with their position.

02/07/2013 Update: 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 proved her citizenship. Ms. Carlson was recently in the news herself when she took her oath of citizenship.

03/20/2013 Update: 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.

03/28/2013 Update:  Judge Sherlock has granted a partial temporary restraining order, issuing “limiting constructions” on the ways that the State of Montana can implement LR-121. 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. Please read the details here.

06/05/2013 Update:  Judge Sherlock has rejected the Montana Attorney General’s efforts to dismiss our lawsuit, and has ruled that the Montana Immigrant Justice Alliance (MIJA) has standing to challenge LR-121 on behalf of its members, who have a reasonable fear that the law will be used to wrongly deny them benefits. Over ten members of MIJA, all of whom were also represented by Shahid Haque in immigration proceedings, came forward to tell the court how they would be impacted by LR-121. This story was also reported in the Great Falls Tribune.

05/29/2014 Update:  We have completed extensive briefing and had a hearing before Judge Sherlock on both parties’ motions for summary judgment. We asked the Judge to enter judgment, without a trial, on the issue of federal preemption.  The hearing went well, and we will await a decision as soon as Judge Sherlock can get to it. We believe we have proven that LR-121 is preempted by federal law.

06/20/2014 Update: Judge Jeffrey Sherlock of the First Judicial District Court struck down the vast majority of Montana’s voter-approved law requiring state agencies to determine an applicant’s citizenship or immigration status before granting a wide variety of state services. Judge Sherlock ruled in MIJA’s favor, holding that the mandates upon state agencies to determine immigration status, and deny a wide variety of state services to “illegal aliens,” are preempted by federal law as an impermissible regulation of immigration.

What is LR-121?

LR-121 was placed on the ballot by the 2011 Montana Legislature, and voters approved the referendum on November 6, 2012. However, the full implications of this referendum may not have been apparent to Montana voters when they cast they ballot. Voters were simply asked if they were FOR or AGAINST denying certain state services to illegal aliens. However, the ballot language did not adequately express the new burdens that all Montanans, including U.S. citizens, will have to face before accessing state services.

LR-121 imposes a sweeping new regulatory scheme that will affect the constitutional rights of almost all Montanans who apply for or use state services. The law now requires all Montanansto present documents to prove their citizenship or immigration status before accessing state services. The burden is now on the average Montanan to prove that they are here legally, or else they will be denied state services. The new law also subjects applicants to being screened through a federal database to confirm immigration status, and gives state agencies unrestricted authority to report applicants to the federal government if information cannot be confirmed.

How Will This Law Impact the Average Montanan?

For the first time in Montana’s history, the state will be requiring citizens to start carrying certain papers and presenting them before they can access basic state services. To be clear, the law imposes a mandate that all applicants for services to be screened for citizenship or legal immigration status, which includes every Montana resident. This imposes a restriction on the fundamental right to pursue life’s basic necessities as provided in Article II, Section 3 of the Montana Constitution.

The services that will now be conditioned on proof of citizenship include employment with a state agency, attendance a public university, ability to obtain student financial assistance, ability to obtain a license or permit to practice a trade or profession, eligibility for unemployment insurance, services for victims of crime, vocational rehabilitation, and certain services for the physically disabled.

Not All Montanans Have Proof of Their Citizenship

Not all Montanans have readily-available proof of their U.S. citizenship — in fact, studies show that nationally, about 7% of the population don’t have these documents. There are typically only two ways to prove you are a citizen: by providing a birth certificate or a U.S. passport. For many reasons, there are Montanans who don’t have copies of their birth certificates, and who have never gotten passports. Under this law, Montanans are losing privacy protections — state agencies are going to ask for your identity documents for basic services and deny you services if you can’t provide them.

In addition, due to the complexities of federal immigration law and the facts and circumstances of an individual’s life, a person can be a lawful U.S. citizen, and a resident of Montana, but lack documentary proof of their citizenship. For instance, Alisha Blair is a U.S. citizen who may be wrongly denied services under this law. Ms. Blair is a 22 year-old who grew up in Sunburst, Montana who automatically acquired U.S. citizenship at birth. She was born in Canada and has been residing in Montana since she was one year old. Her U.S. citizenship was transmitted to her at birth through her U.S. citizen father by operation of federal law, but she has never had any documents to prove her citizenship.

Our complaint includes an affidavit from Ms. Blair and another individual with a similar situation.  The plight of a 65-year-old teacher from Fairfield, Montana  provides another example of the type of person who will be caught in this system. There are many more lawful Montana citizens like these individuals who will be wrongly denied services under this law. By treating lawful Montana residents differently, without any legitimate reason, the law violates the equal protection clause of the Montana Constitution.

Ineffective Screening Through Federal Databases

If you don’t have documents to prove your citizenship of lawful resident status, the referendum suggests that state agencies can screen you through the Systematic Alien Verification for Entitlements (“SAVE”) system, a federal database that charges between $.50 and $2.00 for each search in the system. However, there is a significant limitation with this system: The SAVE program does not contain any information on native-born U.S. citizens, or most individuals who entered the country without inspection. SAVE can only verify information contained in immigrations records. Therefore, it only includes information on individuals who have applied for or received certain immigration benefits through interaction with relevant agencies within the U.S. government.

There is no federal database that is available to the State of Montana for benefit eligibility determinations that would provide a comprehensive listing of all U.S. citizens.

This means that in some ways, native-born U.S. citizens may have a harder time proving their status than a lawfully residing immigrant, because if you don’t have the documents in hand, there is no alternate way to verify your U.S. citizenship. Before implementing this law, state agencies must be called upon to explain how they can implement this law without violating the rights of U.S. citizens.

Violations of the Right to Privacy and Due Process

Under LR-121, lawful Montana citizens who don’t have proof of citizenship may be wrongly denied services that they are entitled to as taxpayers. To make matters worse, there are no due process protections outlined in the law, so there is no clear way to challenge a state agency’s decision if you are wrongly denied services.

There are also no restrictions in the law to protect privacy interests and limit dissemination of the information that is collected. When lawfully present U.S. citizens like Plaintiff Alisha Blair apply for state services, there is nothing prohibiting the State from classifying them as “illegal aliens” and then calling upon the Department of Homeland Security to investigate them. Indeed, the Act provides unrestricted discretion to state agencies to classify any applicant who cannot prove to the State’s satisfaction that he or she is a U.S. citizen as an “illegal alien” and report the individual to DHS.

Montanans value the privacy protections in our Constitution — protections that are greater than provided under federal law and most other states. That’s why we’ve fought back against attempts to create a national identification card, and led the nation in rejecting the federal REAL ID laws. However, based on the misguided goal of targeting undocumented immigrants (even anti-immigrant
groups estimate there are only 5,000 in our state) this referendum has subjected the State of Montana and its residents to far more invasive requirements than REAL ID ever contemplated.

Preemption by Federal Law

Not only does this burdensome regulatory scheme impact our constitutional rights, but it also violates federal law. Under the Supremacy Clause of the U.S. Constitution, the federal government alone has the power to enact and to enforce regulations concerning which non-citizens to admit, exclude, remove or allow to remain in the United States. The federal government has exclusive authority to classify non-citizens within this framework of laws regulating immigration. The states may not create their own distinct classifications of immigrants that differ from the classifications created by federal law.

LR-121 is preempted by federal law because it utilizes its own classification of non-citizens that conflicts with federal law. Section 6(b) of the Act defines an “illegal alien” as “an individual who is not a citizen of the United States and who has unlawfully entered or remains unlawfully in the United States.” The term “illegal alien” is not defined in the Immigration and Nationality Act (“INA”) or other federal laws regulating immigration, and the definition in this law conflicts with federal laws because there are numerous categories of noncitizens who illegally entered the United States, but do not illegally remain in the United States.

This is not a mere technicality, as this definition alone makes the law unconstitutional under the Supremacy Clause of the U.S. Constitution. The State of Alabama recently passed its own state law regulating immigration, and one provision was recently enjoined for the same reason, where it tried to create a separate classification of non-citizens who are entitled to different rights and privileges.

Conservatives and Progressives Alike Should Be Concerned About This Law

Whether you are a conservative or a progressive — Democrat or a Republican — LR-121 is bad policy for the State of Montana. Montana is one of the states with the least numbers of immigrants in the whole country. The violation of our privacy rights, delays or wrongful denial of services, and extra cost to the state are simply not justified by the stated goal of denying services to undocumented immigrants.

According to the Montana Budget and Policy Center, the cost to the State of Montana of implementing this law will be far higher than any savings from denying services to undocumented immigrants. In a time when the Montana Legislature is seeking to cut services to increase the budget surplus, this burdensome new regulatory scheme is counterintuitive.

Who is Representing the Plaintiffs in this Lawsuit?

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

Contact Us

In addition, if you are a U.S. citizen or lawful resident who does not have proof of your citizenship, or are concerned about how this law will impact you, please contact us.

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 (founder of the Border Crossing Law Firm, P.C. and President of the Montana Immigrant Justice Alliance “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.

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.

Shahid Haque, founder of the Border Crossing Law Firm, P.C., had fun talking to Kev Hamm for this week’s episode of his podcast, PoliticktickBOOM!

We discussed LR-121, the state of Montana’s anti-immigrant referendum, the anti-immigrant laws proposed in the Montana legislature, the suspension of the top Immigration and Customs Enforcement officer in the state, and much more.

You can listed to the whole interview here:

Kevin Hamm has been interviewing many important politicians lately, and we suggest checking out his podcast.

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.

Click here for the complete post.

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 ReferendumUnlike 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.  We have discussed many of these bills on this blog.  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 Border Crossing Law Firm, P.C., Montana Human Rights Network, the Gallatin Valley Human Rights Taskforce, the 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.This article will be updated with more information as it develops.