Please note: Many social workers are concerned about the new AZ law that requires state employees to report undocumented persons to the INS. This legal brief below is a resource compiled by the NASW Office of General Counsel and has been published as the January 2010 Legal Issue of the Month.
Social Workers, Immigration Policies and State Benefits
Social workers may have a general concept of immigration requirements, but this area of law is both complex and volatile. U.S. laws and policies affecting the status of immigrants have evolved over time in response to various social, political and economic pressures. More recently, in the wake of welfare reform in the 1990s, and in the post 9/11 era, U.S. immigration policy has returned to an exclusionary focus that has turned toward conflating criminality and undocumented immigration status. Although immigration laws are within the exclusive purview of the federal government, a number of states have attempted to address concerns about violations of immigration law by residents by passing various exclusionary measures. This may create legal questions and ethical dilemmas for social workers who work in programs or areas serving immigrants. When social workers are used as enforcers of exclusionary government policies to the extent of “turning in” violators, valid questions may be raised about the extent a social worker may meet both legal and ethical obligations. This Legal Issue of the Month article reviews recent legal policy as enacted by U.S. Congress, the state of Arizona and related interpretations of the law regarding immigrants’ eligibility for public benefits, documentation and reporting requirements.
Background: Federal Laws
Federal welfare reform in the form of The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 and the changes to immigration policy that were passed the same year in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, in combination, created a set of exclusions from public benefits for immigrants (Broder, 2005). The federal laws created defined categories of immigrants for determining eligibility for federal benefits as “qualified” or “not qualified,” and later added a category for victims of human trafficking that placed them on the same basis as refugees and asylum seekers.
A core of benefits for which all U.S. residents are eligible regardless of immigration status has been defined in federal law. Regardless of the restrictive limits placed on other benefits administered by the states, local governments, or the federal government, access to the following services and benefits is to be provided:
* Emergency medical care
* Short-term, in-kind disaster relief
* Immunizations and treatment of communicable diseases
* In-kind services provided at the community level for the protection of life and safety
* Certain types of housing assistance
(8 U.S.C.A. § 1621, A.G. Order No. 2353-2001).
In addition, widely available services such as police and fire services, or recreational services and the Special Supplemental Nutrition Program for Women, Infants and Children (WIC) are available to anyone regardless of immigration status.
State Example: Arizona Immigration Laws and Public Benefits
Arizona has been the focus of numerous initiatives, legal and extra-legal, to address both the needs of the immigrant community and to curtail what are perceived to be the problems related to immigration by undocumented persons, primarily those passing across the southern border of the U.S. with Mexico, or those overstaying previously valid visas.
In 2004, Arizona voters passed the Arizona Taxpayer and Citizen Protection Act or “Proposition 200,” (codified at Arizona Rev. Stat. § 46-140.01 et seq.). This statute requires reporting of undocumented immigrants to federal officials by government employees upon receipt of information confirming a person’s undocumented status and criminalizes the failure to report as a misdemeanor. Specifically, section 46-140.01 (2005)) requires state government employees to verify identities of applicants for “state and local public benefits that are not federally mandated” and to transmit written reports to federal immigration authorities of “any violation of federal immigration law by any applicant for benefits” (A.R.S. § 46-140.01(A)(1), (4)).
The enforcement provisions of Proposition 200 provide for the imposition of criminal misdemeanor charges for employees who fail to comply or supervisors who fail to direct employees to comply. In addition, a private right to bring legal action to enforce these provisions was created. Thus, the incentive for social workers employed by state and local government agencies to understand and follow the immigration reporting law is not insubstantial.
The requirements of Proposition 200 have alarmed many social workers who are responsible for assisting applicants for public benefits and those who may refer clients to public agencies in order to apply for benefits. Should an applicant for public benefits remain silent when asked for verification of immigration status or make a statement that no documents are available? A subtle distinction between silence versus answering “no” has become a focal point of Arizona law. What may have previously been an insignificant consideration for applicants who are likely to be stressed, ill-informed, and non-native speakers of English, may now form the basis of a life-altering decision for themselves and their families. Arizona social workers who provide services to immigrant clients face serious and complex legal and ethical dilemmas related to the implementation of Proposition 200 and HB 2008. A question has also been raised as to whether public programs that use private funds fall within these mandates as well.
The legality of Proposition 200 has been challenged, interpreted and re-interpreted with a focus on which specific benefit programs require eligibility verification that could lead to a possible reporting obligation and which programs do not require verification. Social worker employees within public programs also need an understanding of what can and cannot be said in communications with applicants for various programs. Proposition 200 has littered the legal landscape with multiple lawsuits and appeals (in federal and state courts), opinions of the Arizona Attorney General, and Executive Orders issued by the Arizona Governor.
The Arizona Attorney General, in Opinion No. I04-010 (Nov. 12, 2004), narrowly interpreted Proposition 200 as applying only to those “state and local public benefits” contained within Arizona’s Title 46 welfare programs that are “subject to federal eligibility restrictions in 8 U.S.C. § 1621.” A key aim of this interpretation was to avoid conflict with applicable federal laws that preempt state law regarding immigration matters. Shortly thereafter, the Arizona Governor issued Executive Order No. 2004-30 requiring state agencies to comply with the new law as consistent with “relevant judicial opinions, and the opinions of the Arizona Attorney General” (Napolitano, 2004). After various court challenges, the Arizona legislature passed HB 2008, which provided a broader definition to the phrase “state and local public benefits” than the Attorney General’s Opinion and applied to “federal public benefits” as well. Based on this, a pending Court of Appeals case was dismissed on December 8, 2009 as moot (Yes on Prop 200 v. Brewer, 2009), holding that the “same identification-verification requirements imposed by the Act expressly apply to the much wider set of public benefits urged by appellants.”
An opinion of the Arizona Attorney General as to details for implementing HB 2008 was requested by the Arizona Department of Administration (Correspondence, Nov. 20. 2009); however, it has yet to be issued.
In November and December 2009, the Arizona Department of Economic Security, Family Assistance Administration (FAA) issued several Policy Broadcasts related to HB 2008 that have been incorporated into its Policy Manual at https://www.azdes.gov/faa/Policy/Default.html. Policy Broadcast 09-37b (issued December 9, 2009) clarified for FAA employees that they should not request additional information if an applicant does not provide immigration documents or refuses to answer questions about their non-citizen status. If the applicant declares that they are residing in the U.S. illegally or provides ICE documentation of an immigration violation, then the employee is directed to file a report of a violation with the agency’s Office of Special Investigations and Immigrations and Customs Enforcement (ICE, formerly the Immigration and Naturalization Service or INS).
Arizona Social Work Laws
Social workers should be familiar with the licensing laws and regulations that may form a basis for disciplinary action when weighing how to respond to a legal requirement that may have negative implications for clients’ welfare. Arizona Revised Statutes § 32-3251 lists the several bases for professional discipline of Arizona-licensed social workers. Among these is A.R.S. §32-3251(12) that identifies as unprofessional conduct: “(k) Any conduct or practice that is contrary to recognized standards of ethics in the behavioral health profession or that constitutes a danger to the health, welfare or safety of a client.”
It is therefore necessary to turn to NASW policies, the Code of Ethics and practice standards to determine the guiding principles for “unprofessional conduct.”
* NASW Code of Ethics
In general, ethical considerations for social work practice that relate to state or federally mandated reporting of immigration violations by applicants for public benefits include:
* Maintaining the clients’ interests as primary
* Promoting self-determination
* Protecting privacy and confidentiality
* Providing competent services and making appropriate referrals
* Maintaining commitments to employers
(NASW, 1996, rev. 2008).
It is noteworthy that the NASW Code of Ethics was amended in August 2008 by the Association’s Delegate Assembly to prohibit discrimination based on “immigration status.” The “immigration status” provisions are addressed in four sections of the Code of Ethics: 1.05 Cultural Competence and Social Diversity; 2.01 Respect; 4.02 Discrimination; and 6.04 Social and Political Action (NASW, 1996, rev. 2008).
In addition, the NASW Code of Ethics directs social workers to “generally… adhere to commitments made to employers and employing organizations…to work to improve employing agencies policies and procedures…and take reasonable steps to ensure that employers are aware of social workers’ ethical obligations as set forth in the NASW Code of Ethics and of the implications of those obligations for social work practice.” Further, “Social workers should not allow an employing organization’s policies, procedures, regulations, or administrative orders to interfere with their ethical practice of social work. Social workers should take reasonable steps to ensure that their employing organizations’ practices are consistent with the NASW Code of Ethics” (NASW, 1996, rev. 2008).
* NASW Practice Standards
Relevant practice standards to address these issues include the NASW Standards for Cultural Competence in Social Work Practice which require social workers to “be knowledgeable about and skillful in the use of services available in the community and broader society and be able to make appropriate referrals for their diverse clients….and to “be aware of the effect of social policies and programs on diverse client populations, advocating for and with clients whenever appropriate” (NASW, 2001).
* NASW Policy Statements
NASW develops organizational policies on matters of public or professional significance. The Association’s policy on immigrants supports a number of specific goals, including several that are directly relevant to undocumented immigrants and their families:
* Guarantee the human service and education needs of all children are met regardless of their or their parents’ legal status.
* Ensure access to emergency health and mental health care for all immigrants.
* Ensure appropriate immigration-related services to undocumented minors in foster care, and, if they are eligible, adjustment of their status before they leave foster care.
* Provide for efforts to remove penalties on the children of undocumented immigrants for their parents’ actions.
* Protect all immigrants from family violence, including the undocumented, with provisions to protect women from gender-specific forms of violence.
* Oppose mandatory reporting of immigration status by health, mental health, social service, education, policy, and other public service providers(NASW, 2009).
Analysis and Conclusions
As interpreted through state agency policies and the Yes on Proposition 200 decision, Arizona Rev. Stat. § 46-140.01 applies to a broad range of public benefit programs. The NASW Code of Ethics creates an expectation that even in circumstances where a legal requirement mandates the disclosure of client information, the client is to be informed, if feasible, before the disclosure is made, of the effects and/or consequences of disclosure. Consistent with acceptable principles of social work practice, it may be appropriate to notify clients in advance of how the new law works so that they will be informed when making a decision whether to remain silent when asked for verification of immigration status or whether to answer “no” if they have no documentation of their status.
Given the seriousness of the consequences for applicants and their families if they report an immigration violation, the importance of language competence for social workers is heightened. The presence of professional interpreters or the use of social workers who speak the applicants’ language may be a critical factor in assuring that individuals understand the subtle distinctions they are being asked to make when responding to the worker’s questions about eligibility for benefits. Social work administrators may need to seek additional guidance as to how notice may be worded and the use of Spanish for written materials related to the immigration reporting requirements in Arizona. Regardless of immigration status, residents of the United States have the right to a core of benefits and services as defined in federal law and the Arizona law (or any other state’s law) does not interfere with or limit the federally established right.
Immigration laws affect families in numerous settings where social workers practice, including child welfare, domestic violence and labor organizing. Social workers should be knowledgeable about the tools and resources applicable to their client populations, especially in the areas of legal complexity where families are extremely vulnerable to exploitation and separation. Social workers and administrators in all the states need to monitor proposed legislation and policy changes as they relate to immigrant applicants for public benefits in order to effectively advocate for workable eligibility criteria that is applied humanely and in accordance with social work values and practice standards.
Arizona Department of Economic Security, Family Assistance Administration (2009). Policy Broadcast 09-37b [Online]. Available at https://www.azdes.gov/faa/Policy/FAA2/baggage/PB%2009-37b%20(12-09-09)%20-%20Noncitizen%20Reporting%20(Amended).pdf (last visited Jan. 11, 2010).
Arizona Revised Statues § 1-502 (2009). [Online]. Available at http://www.azleg.state.az.us/FormatDocument.asp?inDoc=/ars/1/00502.htm&Title=1&DocType=ARS (last visited Jan. 11, 2010).
Arizona Revised Statutes § 32-3251(12) (2004). [Online]. Available at http://www.azbbhe.us/investigations/unprolist.pdf(last visited Dec. 24, 2009).
Arizona Code, Board of Behavioral Health Examiners (2004). R4-6-208 [Online]. Available at http://www.azbbhe.us/ADOPTED%20RULES.pdf (last visited Dec. 24, 2009).
Attorney General Order No. 2353-2001. U.S. Department of Justice. Final specification of community programs necessary for protection of life or safety under welfare reform legislation.
Broder, T. and Blazer, J. (2009). Overview of immigrant eligibility for public benefits. American Immigration Lawyers Association [Online]. Available at http://www.nilc.org/dc_conf/flashdrive09/Access-to-Public-Benefits/pb1_overview-immeligfedprograms-2009-11-04.pdf (last visited Jan. 4, 2010).
League of Arizona Cities and Towns v. Arizona (11/23/2009). Supreme Court of Arizona, , Petition for Special Action Re Sections 1, 2, 5, 6, 41, and 42 of House Bill 2008, Laws 2009, Chapter 7, 49th Legislature Third, Special Session.
Napolitano, J. (2004). Executive Order 2004-30, Directing implementation of proposition 200 and full compliance with related federal law [Online]. Available at http://www.lib.az.us/is/state/eo/2004-30.pdf (last visited Jan. 8, 2010).
National Association of Social Workers (2009). Immigrants and refugees in Social Work Speaks 196, 199 (8th ed.). Available to order online at www.naswpress.org (last visited Jan. 4, 2010).
National Association of Social Workers (2001). NASW Standards for cultural competence in social work practice [Online]. Available at http://www.socialworkers.org/practice/standards/NASWCulturalStandards.pdf (last visited Jan. 8, 2010).
National Association of Social Workers (1996, rev. 2008). Code of Ethics [Online]. Available at www.socialworkers.org (last visited Dec. 24, 2009).
8 U.S.C.A. § 1621 (2009).
U.S. Department of State (2009). Nonimmigrant rights, protections and resources. Office to Monitor and Combat Trafficking in Persons [Online]. Available at http://www.state.gov/g/tip/rls/other/2009/125793.htm (last visited Jan. 4, 2010).
Yes on Proposition 200 v. Brewer (Dec. 8, 2009). AZ Court of Appeals Div. One, No. 1 CA-CV 08-0758 [Online]. Available at http://www.cofad1.state.az.us/memod/CV/CV080758.pdf (last visited December 22, 2009).
It is important to remember that parents applying for benefits for their children are not required to provide proof of their own immigration status if the children will be the only ones receiving benefits. For household-based programs such as food stamps and cash assistance, benefits workers should provide an opportunity for members of the household to be designated as “non-applicants.”
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