Immigration Legislation Advances in the North Carolina Legislature
By Colton R. Overcash | July 3, 2019
As the North Carolina General Assembly prepares to wind down for the year, several immigration bills have noticeably moved recently and could pass before the legislature adjourns.
On June 26, the House of Representatives passed House Bill (HB) 135, an anti-sanctuary expansion bill, by a 65-52 vote, with two Democrats joining every Republican to support it.
As originally introduced, the bill would have expanded the state’s 2015 anti-sanctuary law, HB 318, by allowing residents to file complaints with the state attorney general’s office, who then would have been required to investigate complaints and sanction possible violators. Sanctions included fines up to $10,000 per day for each day the violator(s) fails to comply with state law, as well as an automatic loss of state funding for up to one year.
The original version of the bill would also have outlawed “sanctuary campuses” (colleges and universities who’ve adopted sanctuary policies) and required the Secretary of the North Carolina Department of Public Safety (DPS) to enter into a Memorandum of Understanding with Immigration and Customs Enforcement (ICE), signing up to the 287(g) cooperation program.
However, that version was replaced with a committee substitute in the House Rules, Calendar, and Operations Committee. Even though most of the stricter language was removed by the committee, the current version does contain a private cause of action, allowing any resident to sue to force a sanctuary jurisdiction to comply with state law.
HB 135 is currently assigned to the Senate Rules and Operations Committee where it could be calendared for a hearing at any time.
Additionally, the House is considering a bill that would require local law enforcement to honor immigration detainers. HB 370 initially passed the House in April and was reported to the Senate for consideration; however, it stalled for months without any debate or action. Yet, after months of speculation, the Senate Judiciary Committee calendared the bill for a hearing on June 19 and amended the bill to address concerns the North Carolina Sheriffs’ Association had raised earlier.
The amended version requires local law enforcement to take prisoners with a detainer before a state judicial official (i.e. magistrate or clerk) who must verify whether the person in custody is the same person identified by ICE on the detainer and administrative warrant. If the prisoner’s identity is verified, then law enforcement officials are required to keep him or her in custody for up to forty-eight hours so ICE can pick them up.
The amended bill also allows for removal of local officials from office if they fail to comply with state law.
HB 370 passed the Senate floor five days later (June 24) on a party-line vote, with 25 Republicans approving and 18 Democrats opposed. The House must now approve the changes the Senate made to the bill before it can be sent to Governor Roy Cooper (D).
House Speaker Tim Moore (R), who co-sponsored HB 370, argues the two bills are intended to promote public safety and uphold the rule of law. “If the law-abiding citizens of North Carolina are subject to enforcement of state and federal law, then illegal immigrants detained for committing crimes should be, too.”
Reversing its previous opposition, the North Carolina Sheriffs’ Association has now come out and endorsed the new version of HB 370, saying it “provides an appropriate and careful balance under the Constitution for the rights of the accused and for the public safety of our communities.”
It’s unlikely that either bill will become law, however. Gov. Cooper has already signaled that he is likely to veto HB 370 over concerns that it is “unconstitutional.” This follows an intense and months-long campaign from outside groups to put pressure on the governor. He has yet to take a public position on HB 135, although he would probably veto it as well for similar reasons.
If either bill is vetoed, the chances for an override are doubtful, as Republicans do not have the constitutionally required 3/5 supermajority in either chamber, meaning they would have to convince some Democrats to join them in opposing the governor.
One bill that is expected to pass and become law is HB 668. This measure proposes various changes to existing statutes governing higher education policy, most significantly including criteria used to determine residency status for tuition purposes.
The Senate Higher Education Committee amended the bill during its regular meeting on June 26 by inserting language making high school graduation a criterion for legal residence. Although the bill says high school graduation by itself cannot be used to determine residency, it does make it much easier for applicants, such as illegal aliens who are currently enrolled in the federal Deferred Action for Childhood Arrivals (DACA) program, to become eligible for public benefits like in-state tuition and financial aid.
Currently, if an applicant is able to produce a Social Security Number (SSN) or an Individual Taxpayer Identification Number (ITIN), and other evidence demonstrating residency (i.e. driver’s license, rental agreement, utility bills, etc.), then he or she can become eligible for those education benefits, according to the state’s Residency Determination Service (RDS) guidebook.
This is problematic because many illegal aliens already have ITIN’s (and SSN’s in some cases) and are presumably living and working in the state. By making high school graduation an additional factor to consider, the bill would make it even easier for illegal aliens to get a taxpayer-subsidized college education at the in-state tuition rate.
A much broader in-state tuition bill (SB 295) passed the Senate unanimously in April, so HB 668 is likely to pass the Senate by a similar margin (although it met resistance in the House). Because HB 668 was amended in the Senate, it must still be sent back to the House. If the House approves the changes, it will be sent to Gov. Cooper who is likely to sign it into law.