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Montana Law Identifying Undocumented Aliens Faces Lawsuit

658238_u_s__supreme_court_hallway.jpgAs an experienced immigration attorney in Texas, I must remain aware of major laws regarding immigration matters in other states. The laws that are enacted by other state legislatures and voters are examples that are often adopted by other states. How these laws are enforced or legally challenged provide valuable insights that allow me to better safeguard the interests of my clients.

One of the most intriguing new laws to have been enacted recently is the law in Montana that requires recipients of state services to present proof of citizenship or legal residency. This law, designated LR-121, was supported by almost 80 percent of Montana’s voters in last November’s election. It would also require state agencies to report individuals who could not provide legal status documentation. Montana has yet to enforce the law and, so far, no one has been blocked from state services.

An immigrant advocacy group has allied with a Canadian woman and a teachers’ union to bring suit. The Montana Immigrant Justice Alliance argued that the new law abrogates the rights to privacy, equal protection, and due process. The MIJA also stated the new law would deny services to immigrants who may have entered the country illegally but obtained legal status.

In response to the suit, Montana’s state attorney petitioned the court to dismiss the suit because no party has, so far, received any injury from the law. The presiding judge, Jeffrey Sherlock, responded to the state’s request to dismiss the suit by citing the 1990s case regarding homosexual sex. Although no one had been injured by the law prohibiting homosexual intercourse, the Supreme Court adjudicated the lawsuit, eventually determining the law was unconstitutional. Judge Sherlock stated the presence of a reasonable risk of prosecution justifies the lawsuit; the new law also merited a judicial review according to Sherlock.

Alisha Blair, the Canadian woman named in the suit, and the MEA-MFT, a major public school teachers union were dismissed from the lawsuit, however, for lack of relevance. Sherlock stated the union’s fear that teachers could be asked to enforce the law was “speculative” while Blair’s contention that she could be denied admission to state colleges as “abstract.”

Judge Sherlock also provided limited injunctions on certain portions of LR-121. Part of the law required the use of the Systematic Alien Verification for Entitlements, a federal program, to determine the legal status of persons. Sherlock stated that the SAVE system was not reliable enough to be the only metric for legal status; SAVE may be used but only in addition to a legally approved method of determining legal status.

Judge Sherlock also struck down the term “illegal alien” as being too undefined. Immigrants who enter the country illegally may still obtain legal status and should be able to receive state services. Federal laws permit these legalized immigrants access to governmental services, and takes precedence over LR-121.

Having served in the immigration law profession for some time, I am eager to see how the Montana courts adjudicate this case. If the courts allow access to state services only for legal residents, it may rise to the level of a Supreme Court case, or it may be adopted in other states including Texas. If you have questions or concerns about the Montana lawsuit, you may contact me at (512) 215-5225 to discuss the matter in private.

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