1 Scott v. Sandford, 16 U.S. (19 How.) 393 (1857).

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1 Testimony of Juan Cartagena President & General Counsel LatinoJustice PRLDEF Before the New Jersey State Senate Higher Education Committee Hearing on the Challenges of Financing Higher Education For Students who were Born in the United States And Whose Parents Are Undocumented Trenton, New Jersey 14 May 2012 Good morning Chair and Senator Sandra Cunningham, Vice Chair and Senator Nellie Pou and members of the Senate Higher Education Committee. My name is Juan Cartagena and on behalf of LatinoJustice PRLDEF I welcome the opportunity to testify before you on the issues related to determinations of residency and domicile for the purposes of securing financial aid in attending New Jersey s colleges and universities. Because these issues are directly related to how U.S. citizenship is defined and manifested in New Jersey, it is an issue of direct concern to our organization. Indeed, treating some U.S. citizens less than others solely because of the immigration status of their parents raises questions about a fundamental aspect of our national character: the viability of birthright citizenship. New Jersey will do well to ensure that all citizens of the country and of the state are treated alike in this regard. LatinoJustice PRLDEF is a national Latino civil rights organization that uses litigation and legal advocacy to protect the civil and constitutional rights of Latino residents and citizens. We also cultivate tomorrow s leaders by creating avenues to increase the number of Latino attorneys in the U.S. Our work in New Jersey goes back nearly four decades and includes lawsuits to 1

2 ensure the fair treatment of migrant farm workers in South Jersey, the enforcement of the bilingual provisions of the Voting Rights Act for Puerto Rican voters in Northern Jersey, the establishment of adequate educational vehicles for English Language Learners in both regular and special education classes, the creation of new protections in the courts and before this Legislature to stop discriminatory Election Day challenge practices for Black and Latino voters, and the protection of constitutional rights for day laborers in towns in South Jersey. Most recently we secured an important victory in Plainfield in the case of Bolmer v. Connely Properties that turned back a racketeering claim against a private landlord on the misguided premise that New Jersey landlords had an obligation to ensure that they were not renting to persons with undocumented status. In terms of the subject matter of this hearing, LatinoJustice PRLDEF has weighed in on this very issue with a demand letter dated 12 May 2011 to the New Jersey Higher Education Student Assistance Authority denouncing the illegal practice of denying financial aid to students in New Jersey based solely on the undocumented status of their immigrant parents. That letter is attached hereto. Our initial efforts to engage the NJ HESAA were then subsumed under the pending litigation (A.Z. v. New Jersey HESAA), brought by our colleagues here today. Our concern with New Jersey s treatment of U.S. citizen, college aid students today is the same as it was last year. The State cannot allow the unequal treatment of its citizens many of whom are Latinos by any practice that conditions benefits and financing solely on the immigration status of their parents. Such a practice is illegal, immoral and impracticable as it serves no legitimate purpose in the short term and could only weaken the state s economy in the long term. Equally important, the practice of conditioning access to higher education aid for U.S. citizens based on alienage runs counter to the constitutional foundation of birthright citizenship a principle so enshrined in our constitutional fabric that it is only being questioned by extremist, antiimmigrant forces in the country. 2

3 Birthright citizenship is a significant feature of domestic law and an honored precept of our constitutional law. It is relevant today because even with the relatively large number of foreign born residents of our country, most people still acquire citizenship through birth, not naturalization. What we casually assume is a time honored tradition of birthright citizenship in this country, however, is actually belied by America s history. English common law provides the starting point here with its doctrine of jus soli, the concept that citizenship is granted to all who are born within the nation s jurisdiction. But for over one hundred years of our country s beginning, the notion that citizenship attaches to all born within our jurisdiction did not include all national racial minorities. It took an African American seeking his freedom from bondage to start the national debate and eventually enshrine what all Americans take for granted today. Birthright citizenship is the touchstone that unites the experiences of our nation s African Americans with Latinos, Asians and other immigrants. The Dred Scott decision of 1857 was the turning point in this regard. Mr. Dred Scott sought the jurisdiction of American courts to sue for his freedom. The technical reason that made his claim insurmountable was based on the fact that the jurisdiction of federal courts was only open to citizens. In 1857 the Supreme Court ruled that Scott and all other Blacks, free or enslaved, born within the U.S. or not, could never be citizens because they were deemed inferior and subordinate. 1 The decision accelerated the tension between the slave holding South and the states up North and was not overturned until laws were passed after the Civil War. I respectfully ask this Committee to pause for a moment and consider this moment in our history. It took a Civil War to establish the foundation for birthright citizenship a war where New Jersey s citizens joined the Union s forces to eradicate slavery and establish a stronger federal paradigm for the protection of national rights. 1 Scott v. Sandford, 16 U.S. (19 How.) 393 (1857). 3

4 Birthright citizenship was first established by Congress by the Civil Rights Act of 1866 but more importantly it became the bedrock of our constitutional framework with the ratification of the Fourteenth Amendment to the U.S. Constitution which contains a Citizenship Clause that states: [a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 2 The words of our Constitution ring clear, but as this Committee is surely aware, the promises of our Constitution require much more vigilance whenever race, and even gender, are at play. It took until 1898 for the Supreme Court to categorically rule that children born in the U.S. of aliens who were otherwise barred from becoming citizens based on the racial classifications inherent in our naturalization laws, were, nonetheless, citizens by operation of the Fourteenth Amendment. 3 Until 1931 a female citizen who married a non White alien man ineligible for citizenship was stripped of her own citizenship Congress finally overruled those practices in that year. 4 Finally, the Nationality Act of 1940 clearly granted U.S. citizenship to all Native Americans born in the country their status in this regard was unclear for decades after the passage of the Fourteenth Amendment. 5 Thus, the question that this Committee must address is do we honor the principle of birthright citizenship if we condone distinctions, regarding financial aid, amongst citizens of the U.S. in New Jersey to be conditioned solely on the undocumented status of the immigrant parents of our citizens? I respectfully submit to you that we cannot. Today s call for the end of birthright citizenship is not, in my opinion, predicated on abstract notions of citizenship or polity. Instead, they are directed at the very Latino immigrants that LatinoJustice PRLDEF represents day in and day out. Since immigration and naturalization law is historically 2 U.S. Const., amend. XIV, sec U.S. v. Wong Kim Ark, 169 U.S. 649 (1898). 4 Act of March 3, 1931, ch. 442, sec. 4 (a), 46 Stat Nationality Act of 1940, sec. 201 (b), 54 Stat

5 centered on race and ethnicity, the removal of automatic birthright citizenship will return the country to the proxies of race and naturalization. The former governor of California, Pete Wilson, was one of the earliest major voices for the end of birthright citizenship. His call has garnered some support in Congress as well. 6 Today s press often cites examples of anti immigrant extremists calling for the end of anchor babies. Not surprisingly, given the fervor of antiimmigrant forces today, the U.S. born children of undocumented persons in the U.S. are the subject of such antipathy as to nearly render them political powerless such that they may need protection from the majoritarian political process to paraphrase a Supreme Court formulation of discrete, insular minorities. 7 And lest this Committee believe that my focus on birthright citizenship today is far removed from the practical, immediate policies and determinations of the New Jersey Higher Education Student Assistance Authority, we need only look to what is occurring in Florida where in state tuition is denied to U.S. born citizens solely because of the undocumented status of their immigrant parents. Those policies are subject to a constitutional challenge in pending litigation in federal court in the case of Ruiz v. Robinson. 8 The Orlando Sun Sentinel reported last year that David Caulkett of Floridians for Immigration Enforcement welcomed the practice of denying in state tuition to citizens born of undocumented parents: There are all sorts of problems when you extend citizenship to the children of illegal aliens, including issues of deportation Birthright citizenship is what we need to fix. 9 As this Committee is aware there is also pending litigation in New Jersey regarding similar policies created by the State s Higher Education Student Assistance Authority. 10 The allegations in that case concern a U.S. born citizen of Guatemalan undocumented parents who resided in New Jersey for 14 years 6 For a brief discussion of these developments as well as the concept of birthright citizenship in general, see, White By Law: The Legal Construction of Race, Ian Haney López, New York University Press, NYC, U.S. v. Carolene Products Co., 304 U.S. 144 (1938). 8 Ruiz v. Robinson, F.Supp 2d (S.D. Fl.). For further information go to the website of the Southern Poverty Law Center ( (last accessed: 12 May 2012). 9 The Orlando Sun Sentinel, 19 Oct A.Z. v. HESAA, F.Supp 2d (D.N.J.). For more information visit the website of the ACLU of New Jersey ( (last accessed 13 May 2012). 5

6 and only once visited Guatemala, briefly at the age of nine. And yet HESAA has determined that her residence and domicile is that of her undocumented parent i.e., Guatemala, and denied her access to a TAP grant. I would respectfully submit that such an interpretation is untenable. The residency requirement to become eligible for financial aid at this level is created by statute in N.J.S.A. 18A: 71B 2 (b), 11 the requirement is simply a durational requirement with no reference to the residency of the parents of dependent students. Instead, HESAA interprets the accompanying regulatory scheme at N.J.A.C. 9A:9 2.2 (a) (1) to require that the domicile of financially dependent students turns on the domicile of their parents. The result for this category of U.S. citizens is that, inexplicably and regardless of all other evidence to the contrary, their domicile is the foreign country from which undocumented parents herald. There have been numerous interpretations of the term residency and domicile under New Jersey law that we have cited before in our 2011 correspondence to HESAA and that have been provided to the court by the attorneys representing the college age student, A.Z., that do not support HESAA s position. 12 The pleadings in that case by the Prof. Ron Chen of Rutgers University Law School and the ACLU of New Jersey amply provide this Committee with a framework with which to analyze these issues and a determination of the application of federal law to this problem will ensue accordingly. In the meantime this Committee should require HESAA to elaborate on the scope of this problem, that is, how many U.S. citizens in New Jersey are likely to be denied financing for higher education based solely on the undocumented status of their immigrant parents? Based on estimates derived from public data, LatinoJustice PRLDEF estimates that over 9,000 U.S. citizens of college age in New Jersey at present are likely to be denied the very same access to higher education financing that 11 A person shall not be awarded financial aid under this chapter unless the person has been a resident of this State for a period of no less than 12 months immediately prior to receiving the financial aid. 12 See, Shim v. Rutgers, 191 N.J. 374 (2007) (Rutgers erred in denying in state tuition to a U.S. citizen and New Jersey resident who was financially dependent on parents who lived in a foreign country where evidence existed to prove residency in New Jersey); Caballero v. Martinez, 186 N.J. 548 (2006) (an undocumented person can still be considered a resident of New Jersey for the purposes of the New Jersey Unsatisfied Claim and Judgment Fund Law). 6

7 other citizens enjoy based solely on the undocumented status of their parents. Furthermore, these policies have the potential of denying 220,000 citizens an equal educational opportunity. Applying a rate of 81% to these figures representing the estimates of unauthorized persons in the U.S. from Mexico and Latin America (see below) we conclude that 7,290 U.S. citizens of Latino heritage will be denied funding for higher education and potentially 178,200 Latinos who are U.S. citizens will be similarly discriminated against. Over nine thousand citizens, seven thousand of which are Latino! Potentially, 220,000 citizens 178,000 of which are Latino! The publicly available data sources we rely upon are attached hereto. We have taken the ratio of U.S. born citizen children of undocumented immigrant parents set forth in a report from the Pew Hispanic Center 13 which numbers roughly 4.5 million and compared it to the estimates of undocumented immigrants overall, 11.2 million. This is a ratio of 4o%. The report also concludes that of the overall undocumented population in the U.S., 81% are from Mexico and Latin America. Based on the same report there are approximately 550,000 undocumented immigrants in New Jersey. Applying the national ratio to this population yields an estimate of 220,000 U.S. born citizen children of undocumented parents in the Garden State. Stated otherwise, HESAA s policies of denying financial assistance to these students will eventually affect at least 220,000 U.S. citizens. To estimate the proportion of those citizens who would otherwise seek financing for higher education we took the proportion of New Jersey s population that is aged 18 to 24, or 8.7% and applied that to the universe of 220,000 children. That yields approximately 19,198 U.S. born citizen children of undocumented immigrant parents who are within the ages of 18 and Unauthorized Immigrant Population: National and State Trends, (Feb. 1, 2011). 7

8 Finally, we estimate the portion of that number of children (19,198) that are enrolled in higher education based on New Jersey characteristics. In New Jersey 47% of that population is enrolled in higher education, based on estimates for the population as a whole. Accordingly, 47% of the 19,198 children estimated above are likely enrolled in higher education in the state, or 9,023 U.S. born citizen children of undocumented immigrant parents, and 7,290 of them are Latino. Inasmuch as higher education is an option to all adults regardless of age, potentially 220,000 citizens will be denied an equal educational opportunity in New Jersey over 178,000 of which are Latino. A final observation on the unfairness of HESAA s policy: As we noted in our 2011 letter to HESAA, it is unclear how a policy of denying assistance to these U.S. citizens will apply to students whose parents are legally authorized to remain in the country but not in possession of a lawful permanent resident card. Parents who were granted Temporary Protected Status by the Department of Homeland Security are legally authorized to work and live in the country but do not qualify for driver s licenses under New Jersey law or Social Security benefits under federal law. In short, the United States exercises its discretion not to remove persons who are present without authorization for a host of economic and humanitarian reasons. How HESAA s policies deal with these complexities is unknown to us at this time. Conclusion There is no benefit to denying access to financial assistance for higher education to students who are otherwise eligible for such aid. The value of a 8

9 college education to any resident of New Jersey, and indeed to the State, cannot be gainsaid. In general a college degree can translate into one million dollars more in earnings than comparable workers with only a high school diploma. 14 Higher education attainment is also correlated with higher civic engagement, voting, and lower dependence on government benefits and imprisonment. And certainly higher wages translate directly into higher taxes for the State s fisc. There is no legitimate purpose served by denying this financial assistance now to save pennies when New Jersey stands to gain considerably by an educated workforce. As a subclass of students who live in the shrouded world of our undocumented immigrant communities the policies that New Jersey is condoning through HESAA s interpretations also work to keep these students in isolation. It is eminently plausible that the requirements that lead to the exposure of the undocumented immigrant status of their parents may lead worthy students to forego a college education entirely or to delay it considerably. In either case students may not dare putting their parents at risk and thus weaken both their households and the State as well. Finally, and more importantly, we are addressing distinctions today between otherwise eligible U.S. citizens. These citizens did not choose their parents. Nor could they control the actions and decisions their parents have made to enter and stay in this country. Unless New Jersey is prepared to state that birthright citizenship is not the law of the State, unless New Jersey is prepared to admit that some citizens are more worthy than others, it must eliminate every distinction between U.S. 14 The College Payoff: Education, Occupations, Lifetime Earnings, Anthony Carnevale, Stephen Rose & Ban Cheah, Georgetown University Center on Education and the Workforce, 5 Aug www9.georgetown.edu/grad/gppi/hpi/cew/pdfs/collegepayoff summary.pdf (last accessed: 13 May 2012). 9

10 citizens that is conditioned on the immigrant status of the parents of collegebound students. Equality demands no less. Respectfully submitted, Juan Cartagena President & General Counsel LatinoJustice PRLDEF 99 Hudson Street New York, NY