Law Students, a Little Help?
May 10th, 2007 at 2:26 pm
Another point of order reared up and took out a bill this session. At least this time it was a bad one. It took a while, but Rep. Tommy Merritt eventually found a chink in the armor of HB 159, a bill that would unfix a piece of legislation that was working just fine, thank you. It would have denied in-state tuition to undocumented immigrants, even after the students proved they had lived in Texas for at least three years.
The Observer has already written about why bills like this are bad. And Scott Henson at Grits for Breakfast has covered both the vindictiveness and political games behind this particular bill, so we’ll leave that aside.
But a larger, unspoken question of law kept surfacing in today’s debate, and it’s outside this blogger’s pay grade to answer it. The sides, already separated by the rhetorical gulf between “immigrants” and “illegal aliens,” were also arguing across the legal gap their word choice represents.
Supporters of HB 159 argued that it isn’t fair for “illegals” to receive the “benefit” from the state of a tuition break. Opponents countered that because the students had established residency status, they had paid into the state system just like every other student, so they should qualify for the same tuition.
This back and forth went on and on, with folks like Rep. Bill Zedler, the bill’s author, always coming to the same point: “Do we totally ignore the fact that the laws of the United States have been broken?” So “illegals” should not get the same benefits as citizens, because they broke the law. In other words, these students were either in a constant state of law-breaking by living here, or their past offense (of simply crossing the border) had stripped them of the rights and/or privileges that come with residency in this state.
Zedler’s opponents, by contrast, were arguing that the violation of immigration laws was a separate action from living in the state, almost like a speeding ticket or another offense for which you receive one punishment from the proper authorities (be it a fine from a traffic cop or deportation by INS). In-state tuition, then, while not exactly a guaranteed universal right, is at least a benefit bestowed equally to all residents. After all, these students are clearly allowed to apply to college like everyone else and get accepted on their merits, just as they were allowed to attend primary school without regard to immigration status.
So which is it?
Now, I’m sure all of this is covered in about the first five minutes of an immigration law class. But I’ve never seen the answer, one way or the other, broken down for laymen. Seems like if we answered these questions, that would stop a lot of knock-down, drag-out debates before they ever started. Might stop some bad bills, too.
May 11th, 2007 at 8:30 am
Okay, I’m not a law student nor a lawyer, but I’ve looked at this before and here’s how I understand it:
The act of entering the country illegally is a criminal act, a federal misdemeanor unless you have been convicted in court of doing it before. The only criminal act per se for most undocumented immigrants is the actual border crossing at the point of entry. Undocumented people who commit crimes while in the US do their time and then are systematically deported.
The continuous act of being in the country violates no criminal law. Immigration violations are a civil violation only (think of the difference between a parking ticket and a moving violation). They can be detained and deported, but not prosecuted and imprisoned (unless evidence of their illegal crossing can be specifically proven).
Many immigrants, btw, NEVER committed a criminal act to enter the country - a huge portion of undocmented immigrants crossed legally then overstayed the legal time limits when they’re supposed to return.
All this complicates further when you talk about kids. If they’re born here they’re citizens and obviously get in-state tuition. But that could easily result in older and younger siblings treated differently, and that’s hardly fair, either.
That’s why, just like people from Arkansas or Oklahoma, Texas law considers non-citizens residents if they move here and stay long enough, though the requirements are greater. To qualify for in-state tuition, e.g., Okies must first reside here for one year, while the HB1403 kids must have completed three years and graduated from a Texas high school.
Get Dan Kowalski or Rebecca Bernhardt to give you more specifics and the federal cites, but that’s the layman’s big picture legal framework, as I understand it. Somebody correct me if I screwed it up.
May 11th, 2007 at 1:18 pm
I just want to make sure that I understand… the House may vote to limit ILLEGAL ALIENS’ access to higher education, correct? They would not be voting to limit any IMMIGRANTS’ access, only persons who have entered and remained in this country illegally.
So basically, they’d be voting to uphold the law.
I don’t see any controversy here. And I don’t have a problem with immigrants. I DO have a problem with people here illegally, for a number of reasons, but mostly because it’s ILLEGAL.
What would any of us expect to receive if we entered another country illegally? Would we expect to receive free services from that country’s government, or free housing, or a drivers license, or VOTING RIGHTS? Personally, as a criminal in that country, I wouldn’t even expect respect or kindness. I would expect to be arrested and deported.
And yes, it really IS that black and white.
May 14th, 2007 at 4:29 pm
Heidi:
I don’t see the logic in your analysis. How is denying a kid instate tuition “upholding” immigration laws. Let’s say I live in a town, where some of the people are blue. These Blue people are always putting their trash out on Thursday, which is a violation of our town’s strict law about putting trash out on Wednesday. Their trash stays out all week, waiting to be picked up. Dogs and cats tear into the trash, and it creates a nuisance and a health hazard.
We become so upset that we look for ways to run the Blue people out of town. We notice that the Blue people love to swim in our public pool, so we pass a law that say “No Blue people can swim in our public pool because you know Blue people don’t uphold the laws of our town. They are you know, ILLEGAL, because they are in a constant state of breaking our trash rules.”
We don’t punish a five year old kid who is in the back seat of a car involved in a robbery. We punish the adults who drove the car. We may not like that the parents of these kids jumped the border or over-stayed a visa but let’s not take it out on them.
For some reason, the concept of grace is being left out of this.
David