Expanding the Rights of Immigrants by Voting ‘Yes’ for a New York Constitutional Convention

By Cyrus D. Mehta and Sophia Genovese-Halvorson

On November 7, 2017, voters in New York will get an opportunity to decide whether to hold a Constitutional Convention in order to improve New York’s Constitution. The next opportunity to engage in this unique democratic experiment will arise in 2037.

The latest polls have shown that large numbers of voters want changes in New York’s Constitution that the legislature has failed to enact – e.g. an entitlement to healthy air and clean water, strict limits on the outside employment of legislators, independent ethics enforcement, an end to gerrymandering, making it easier to register and vote, closing campaign finance loopholes, term limits, and the expansion of immigrants’ rights and protections. At the same time, a poll is showing that New Yorkers oppose calling for the Convention.  Many reasonable people oppose voting for a New York Constitutional Convention in the age of Trump, dark money and Brexit. But when we run away from democracy itself out of fear, we will never be able to improve the rights of New Yorkers even beyond the US Constitution, including immigrants.  We have this opportunity only once every 20 years.

Some say the path forward is to replace New York’s elected representatives with others who will make the needed reforms.  However, as the late Governor Mario Cuomo observed, our elected representatives live in a cocoon of unaccountability and incumbent protection.   The system is designed to secure their reelection.  That system needs to be changed, and it will take an outside force to do it. Short of calling a Constitutional Convention, the only way to amend the Constitution, or to pass any law, is with the approval of the legislature. But as just explained, elected officials are in favor of maintaining the status quo.

There is also an understandable, but misguided, fear that certain protections, such as the labor bill of rights, the duty of the legislature to care for the needy, the right to a free public education, and the preservation of the Adirondack Park will be at stake. However, these are indeed rights and protections that were created through the Constitutional Convention process. The New York Times, while unfortunately coming out against the Convention, has called these concerns “overwrought.” The history of the Convention has not been one of stripping rights; rather, it has a rich history of creating radical advancements in human rights for all New Yorkers. The 1938 Constitutional Convention affirmed the duty of the state to aid the needy, promote public health, educate its children, and care for the physically and mentally handicapped. It is not as if a vote in favor of a Constitutional Convention would give a carte blanche to delegates to adopt any reforms of their choosing. The last state Constitutional Convention was in 1967, where voters ultimately rejected the proposed changes created by the Convention Committee. Then there is the claim that reform minded delegates won’t get elected and that the Convention will be “hack filled.”  The strikes us as having too little trust in voters who having called for a Convention to effect reform would supposedly turn around and elect people opposed to reform.  Voters in a progressive state like New York are much smarter than how they are perceived by opponents to the Convention.

The 2017 Convention Vote will again provide New Yorkers with the opportunity to continue the tradition of expanding rights in the New York Constitution, including the expansion of rights and protections afforded to immigrants. Albany had not been able to bring about any meaningful reforms for immigrants. Our “gerrymandered” elected representatives are so entrenched that only a criminal conviction, rather than votes, can dislodge them.  If we can broaden equal rights for all New York residents, including immigrants regardless of status, we will not need to rely on Albany that is in a perpetual logjam and stalemate. For example, New York’s Department of Motor Vehicles will be compelled to issue drivers licenses to all New York residents, regardless of immigration status, based on the broader equal protection clause in the New York Constitution that can be developed through a Constitution Convention.

Cyrus Mehta’s Op-Ed in The New York Daily News forcefully and eloquently advocates for expanded equal rights for all New York residents, including immigrants. It is reproduced below:

“The N.Y. constitutional convention immigrants need”

As the federal government threatens undocumented immigrants, New Yorkers have an opportunity to provide vital protections to those immigrants living in the state. On Election Day, voters can choose to convene a constitutional convention where the rights of those immigrants could be strengthened in ways that the federal government cannot erase.

It’s an opportunity we must not miss.

New York has always been a magnet for immigrants. The Statue of Liberty is here — not in Washington, D.C. — for a reason. Yet the state Constitution has never addressed the discrimination immigrants face.

It addresses only discrimination based on race and religion, not on country of origin or immigration status. Notably, it does not even prevent discrimination based on gender.

That’s a misfit for the character of our state. In 2015, more than 4.5 million foreign-born individuals constituted 22.9% of New York’s population. Only California has a higher count.

More than 3 million foreign-born immigrants live in New York City, more than in any other city in the world. They represent over 37% of the city’s residents.

Among these immigrants are an estimated 817,000 in New York State, including 575,000 in New York City, without valid federal authorization. These undocumented immigrants — who pay taxes, otherwise observe our laws, and enrich our communities — contributed $40 billion to New York’s economy and $1.1 billion to state and local taxes in 2015.

While the equal protection clause of the U.S. Constitution covers all persons within the jurisdiction of any state, the U.S. Supreme Court has applied a relaxed standard of review to discrimination against undocumented immigrants. As a result, laws depriving those immigrants of basic civil rights have been upheld.

An amendment to the state Constitution could prohibit such discrimination — and finally reflect the values of New York, where over the decades governors and mayors, Republican and Democratic alike, have consistently defended the rights of undocumented residents.

While it’s federal laws that mandate that undocumented immigrants be removed — subject to the executive branch’s priorities, which are at least in theory supposed to be focused on threats to public safety — the likelihood is uncertain. Even if the federal government initiates removal, proceedings can take years.

More importantly, immigration status is often uncertain. Immigrants can gain authorization to remain by falling in love with and marrying an American. More than 800,000 young undocumented people who came into the United States before the age of 16 received authorization to remain under Deferred Action for Childhood Arrivals — an Obama-era program.

President Trump has canceled DACA, but suggested in a tweet that “Congress can legalize DACA,” and added that, if not, he “will revisit the issue.”

Basic rights should not hinge on such vagaries.

People are undocumented because the federal immigration system, desperately in need of sensible reform, has not provided meaningful pathways to legal status for many who have family or jobs in the United States. As New York will continue to be home to undocumented immigrants, it is only fair that the state Constitution provide equal civil rights to all, regardless of immigration status.

Once such equal rights are established, they will preclude discrimination against New York residents based on their immigration status.

For example, New York would have to grant driver’s licenses to undocumented immigrants. That would help ensure that our roads are safe and provide a boon to those who need to drive in order to work or take their children to school.

Such an expanded protection against discrimination in our state Constitution could not be erased by the federal government.

In specific areas, federal law may preempt the states — but, under our federal system, state law governs most civil rights, such as the right to contract, to an education, to buy a home, to drive and more.

At a time when the federal government seeks to force state and local law enforcement to punish undocumented immigrants in ways that go beyond valid federal preemption and financial incentives, asserting New York’s sovereign lawmaking and enforcement rights is vital.

The first step in getting from here to there is voting yes on a constitutional convention.

(This blog represents the personal views of the authors and not necessarily those of any organizations that they may be a part of)


August 15, 2014 marks the two-year anniversary of the implementation of Deferred Action for Childhood Arrivals (DACA) by the Department of Homeland Security (DHS).  The policy was announced through a memorandum by then Secretary of Homeland Security Janet Napolitano on June 15, 2012.  The Memo directed the heads of Customs and Border Protection (CBP), Citizenship and Immigration Services (CIS), and Immigration and Customs Enforcement (ICE) to implement DHS’s decision to grant deferred action, and employment authorization, to certain eligible individuals who entered the U.S. when they were younger than 16 years old.  Now, nearly two years have passed since DHS began accepting applications for the program on August 15, 2012.  DACA recipients who were among the first to apply and receive DACA and employment authorization must now undergo the process of renewing their DACA.

ICE and USCIS released their renewal processes in February and early June, respectively.  ICE had begun issuing DACA to eligible immigrants in removal proceedings prior to August 15, 2012, when USCIS began accepting applications.  To be eligible for DACA renewal, the recipient must (1) not have departed from the U.S. on or after August 15, 2012 without advance parole; (2) have continuously resided in the U.S. since the first DACA approval; and (3) not have been convicted of a felony, significant misdemeanor, or three or more misdemeanors, and does not otherwise pose a threat to national safety or public safety.

The renewal process for ICE-granted and USCIS-granted DACA recipients is the same:

Complete and submit the following forms:

    • The new version of Form I-821D (6/4/2014 edition)
    • Form I-765
    • Form I-765 Worksheet
  • Submit the $465 fee for the employment authorization application
  • Submit only new documents involving removal proceedings or criminal history that was not previously provided to USCIS (Note: USCIS does not require previously submitted documentation establishing the applicant’s DACA eligibility)

USCIS has advised DACA recipients to renew approximately 120 days (4 months), but no more than 150 days (5 months), before their current DACA grant expires.  USCIS also anticipates that in the event it cannot process the submitted applications before the initial DACA expires, it might issue extensions of the initial DACA to prevent any lapse in time before the renewal is approved.

Since its implementation, DACA has been granted to over 550,000 recipients, according to USCIS statistics released on March 2014.  DACA has provided more than half a million young immigrants security from removal and a means to work lawfully in the U.S. The DACA recipients, sometimes also called Dreamers, can now live openly, work, and contribute to their own and their families’ wellbeing.  The economic and social repercussions of this have not yet been fully studied or revealed, though the American Immigration Council recently published a studyof the economic impact of DACA on the recipients.  The study found that through DACA, many young immigrants have benefitted economically through such activities as obtaining new jobs, getting driver’s licenses, and opening bank accounts.  We can also imagine what has been the psychological impact on these young immigrants of coming out of hiding and being able to be productive members of American society and the American workforce.  They have experienced the excitement of receiving an approval notice and the much sought after work permit, then a valid Social Security Number and card, and then oftentimes a State Identification Document in the form of an ID or driver’s license.

Though it has undoubtedly bettered the lives of half a million recipients, DACA has been a double-edged sword.  While it provides recipients protection from removal from the U.S. and allows them to work legally, DACA is still far less than what these young immigrants would have received from the government had the DREAM Act or Comprehensive Immigration Reform (CIR) passed in Congress.  The DREAM Act would have granted a way for eligible young immigrants to apply for permanent residence, and therefore, lawful status.  S.744, the CIR bill passed by the U.S. Senate on June 27, 2013, and that has since stalled in the House of Representatives, included stipulations for the implementation of the DREAM Act’s provisions.  In contrast, DACA is only granted for two years, and DACA recipients must renew before the expiration of their deferred action and work permits.  Moreover, DACA recipients do not have lawful status in the U.S. (although they do not accrue unlawful presence upon the grant of DACA since they are still authorized to remain), and there is no direct pathway to permanent residency or U.S. citizenship.

One limitation that some DACA recipients face is getting a driver’s license.  Until recently, two states, Arizona and Nebraska, refused to grant driver’s licenses to DACA recipients.  The Ninth Circuit, on July 7, 2014, struck down Arizona’s law that denied driver’s licenses to DACA recipients.  Arizona Dream Act Coalition v. Brewer, No. 13-16248, WL 3029759 (9th Cir. July 7, 2014).  This much-maligned law (see Cyrus Mehta’s take down of it here) was put in place as soon as DACA was first announced in the summer of 2012.  Governor Jan Brewer issued Executive Order 2012-06 “Re-Affirming Intent of Arizona Law In Response to the Federal Government’s Deferred Action Program,” August 15, 2012, directing Arizona state agencies to design rules to prevent DACA recipients from becoming eligible to obtain state identification such as driver’s licenses.  Arizona’s Department of Transportation’s Motor Vehicle Decision changed its requirements for state identification eligibility such that Employment Authorization Documents (EADs or work permits) with the DACA category code of (c)(33) would not be accepted as proof that the license or ID applicant’s presence was authorized in the U.S.  Five DACA recipients living in Arizona, along with the Arizona Dream Act Coalition, filed suit to stop Arizona from enforcing its policy.  The Ninth Circuit found that the law violated the Equal Protection Clause and there was no rational basis for the Arizona government’s policy.  The decision hinged on Arizona’s refusal to accept as proof of “authorized presence” in the U.S. an EAD based on DACA category (c)(33) work while they continued to accept EADs based on (c)(9) and (c)(10) categories, which respectively correspond to applicants for adjustment of status and applicants for cancellation of removal.  The Ninth Circuit systematically rejected each of Arizona’s arguments that it had a legitimate state interest in upholding the policy. Initially the Court rejected Arizona’s argument that (c)(9) and (c)(10) noncitizens could demonstrate authorized presence in the U.S. while (c)(33) could not.  Putting aside the nonsensical use of the term “authorized presence” which holds no actual meaning in immigration law, Arizona conflates the immigration concepts of unlawful presence and unlawful status – two very different things.  Unlawful presence is used in determining admissibility under the 3- and 10-year bars, while a noncitizen not in lawful status may be authorized to stay in the U.S.  The Court’s clearly did not make that mistake: “Employment Authorization Documents merely “tied” to the potentialfor relief [i.e. (c)(9) and (c)(10) categories] do not indicate that the document holder has current federally authorized presence, as Arizona law expressly requires.”  Arizona Dream Act Coalition, at *9.  Moreover, the Court found that Arizona’s other four arguments also could not hold up against a rational basis test. Arizona could not show it might have to issue licenses to 80,000 unauthorized immigrants (less than 15,000 Arizona residents have applied for DACA). DACA recipients cannot access state or federal benefits using a driver’s license alone.  Though the DACA program might be canceled at any time and DACAs could lose their authorized stay, the same could occur to (c)(9) and (c)(10) noncitizens whose corresponding applications are denied.  Therefore, these arguments also do not pass the rational basis test.  The Court went on and mentioned that additionally, Arizona’s policy “appears intended to express animus toward DACA recipients themselves, in part because of the federal government’s policy toward them.”  Id. at *25.  The court pointedly stated: “Such animus, however, is not a legitimate state interest.”  Id.

Interestingly, the Court struck down the law on equal protection grounds rather than conflict-preemption.  Generally, courts use preemption analysis to strike down a conflicting state law acting to regulate immigration.  In a concurrence, Circuit Court Judge Christen analyzed the case’s conflict-preemption argument and found that Arizona’s policy effectively created a new class of noncitizens who are not under “authorized presence” – a descriptor not recognized in immigration law.  The act of creating a new immigration classification, in Judge Christen’s view, is preempted by federal law because states may not directly regulate immigration.  Id. at *13, citing Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1023 (9th Cir. 2013), cert. denied, 134 S. Ct. 1876 (2014).  Moreover, in footnote 3, the Court notes that Judges Pregerson and Berzon agree with the concurring opinion, and specifically that the plaintiffs in the case could succeed on a conflict preemption argument.

Here, however, the Court’s majority analyzed Arizona’s law from an equal protection perspective, which gives it lasting and powerful impact.  By going this route, the 9th Circuit recognized DACA recipients to be part of a protected class.  This can have huge implications for any other state laws that purport to discriminate against this now recognized protected class of noncitizens.  Moreover, the Court, in footnote 4, acknowledged that the Supreme Court in other cases applied strict scrutiny standard of review when state action discriminates against noncitizens authorized to be present in the U.S., see e.g. Graham v. Richardson, 403 U.S. 365 (1971).  But here, the Court states it did not have to analyze under strict scrutiny review because Arizona could not even make its case under the lower rational basis test.  In its analysis the Court found it could “identify no legitimate state interest that is rationally related to Defendant’s decision to treat DACA recipients disparately from noncitizens holding (c)(9) and (c)(10) Employment Authorization Documents”  Arizona Dream Act Coalition at *8. (emphasis added).  It is also worthwhile to note that, unlike the Arizona district court which also held that the Arizona government’s arguments failed a rational basis review, the 9th Circuit found that the protected class, here the DACA recipients, would likely suffer irreparable harm in the absence of a preliminary injunction.  The irreparable harm was the limiting of the DACA recipients’ professional opportunities, hurting their abilities to seek or maintain a job in a state where 87 percent of its workers commute by car.

The decision lays bare the type of backlash that occurred after the Obama administration introduced DACA.  Conservative pundits and anti-immigration groups believe that these young people should receive no acknowledgement or benefits from a country to which they do not belong.  This type of thinking is not only wrong, but it fuels hatred toward a group that, for all intents and purposes, took no part in the decision to enter the U.S. without inspection or to overstay visas.  The point of the DACA policy is to respond to the cries from millions of young immigrants brought into the U.S. as children, who have grown up in the U.S., but who are forced to stay in hiding.  They are punished for someone else’s sins.

I have personally processed over 100 DACA applications in the past two years.  When talking to these young immigrants and their families, it is often impossible to tell apart the individuals who were born here and the ones who were brought here.  DACA requestors speak like Americans, look like Americans, and dream the American dream like native-born Americans.  It is hard to put into words the unfairness of their lives: to live in a country that is oftentimes the only one they have known, and yet to be denied full recognition and basic equal treatment.  Worse, they are called “illegal” and are made to feel unwanted and unwelcome.  This treatment is confusing and painful to many of these young people who had no choice about coming to the U.S.  Yet they are undoubtedly the future of this country.  They will help shape the U.S. cultural, economic, and political landscape.  And we are not doing enough to acknowledge their presence, since they are here to stay, and provide them with the tools to be full active members of American society.

The Obama administration has implemented regulations and executive policies to alleviate some of the pain from long-standing immigration problems that Congress has time and again failed to address.  DACA, for instance, was the Executive’s response to Congress’s failure to pass the DREAM Act in 2010.  Recently President Obama spoke out angrily against Congress’s ability to compromise on immigration reform, calling it the reason behind his decision to direct more resources to address the ongoing crisis of unaccompanied children.  As has been pointed out on this blog, Obama can expand the use of Executive action to confront problems in immigration law while we wait for Congress pass CIR.  The Obama administration can do more than just grant deferred action to young immigrants.  DHS could grant deferred action to DACA parents.  The Department of Education could grant federal student loans to DACA recipients.  Paradoxically, the Obama administration has specifically rendered DACA recipients ineligible for healthcare benefits under the Affordable Care Act even though prior to the August 2013 rule, DACA recipients would have been eligible.  There are myriad ways Executive action, such as DACA, can provide relief to millions of immigrants who live and work beside us every day.  Until such time that Congress takes action, the Executive will have to be the branch taking action, and immigrants must be content with its limitations.

Because the basis of a deferred action grant is DHS’s policy of prosecutorial discretion, it remains only in the form of executive action and it is not an actual law passed by Congress and signed by the President.  DACA and any other executive action are thus vulnerable to attacks from groups and individuals who consider them an overreach by the Obama administration. These attacks, such as Arizona’s driver’s license law, are often informed by fear and a fundamental misunderstanding of immigration law.  Litigation to strike down these anti-immigrant and anti-immigration state laws, which are arguably preempted by federal law, can sometimes take years.  Moreover, executive action while necessary in the face of Congressional inaction is limited in scope: it cannot grant visas or permanent residence, which only Congress can do by expanding the eligibility categories for permanent residence.  Meanwhile, immigrants languish in backlogged visa lines, wait months and years for hearings before an immigration judge, face harsh vitriol from anti-immigration groups, and DACA recipients still do not have a way to become fully integrated into American life.