“I Am Undocumented and a New Yorker”: Affirmative City Citizenship and New York City’s IDNYC Program
“I Am Undocumented and a New Yorker”: Afir mative City Citizenship and New York City's IDNYC Program
Amy C. Torres 0 1
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Recommended Citation Amy C. Torres, “I Am Undocumented and a New Yorker”: Affirmative City Citizenship and New York City's IDNYC Program, 86 Fordham L. Rev. 335 (2017). Available at: http://ir.lawnet.fordham.edu/flr/vol86/iss1/19
The power to confer legal citizenship status is possessed solely by the
federal government. Yet the courts and legal theorists have demonstrated
that citizenship encompasses factors beyond legal status, including rights,
inclusion, and political participation. As a result, even legal citizens can face
barriers to citizenship, broadly understood, due to factors including their
race, class, gender, or disability. Given this multidimensionality, the city, as
the place where residents carry out the tasks of their daily lives, is a critical
space for promoting elements of citizenship.
This Note argues that recent city municipal identification-card programs
have created a new form of citizenship for their residents. This citizenship,
which this Note terms “Affirmative City Citizenship,” is significant for both
marginalized populations generally, as well as undocumented immigrant city
residents who, because of their noncitizen legal status, face additional
hurdles to city life. Utilizing “IDNYC”—New York City’s municipal
identification-card program—as a case study, this Note examines the
strengths and limitations of Affirmative City Citizenship as a means for
supporting undocumented immigrant city residents. It concludes that while
Affirmative City Citizenship is a powerful tool for confronting barriers to
citizenship, its success with the immigrant population relies in part on the
city’s adoption of other proimmigrant policies that more directly conflict with
federal law. Accordingly, it recommends that cities seeking to protect their
undocumented immigrant city residents adopt both types of policies.
I. CITIZENSHIP AND THE CITY .................................................................. 339
A. Citizenship as Legal Status ....................................................... 339
B. Multidimensional Citizenship ................................................... 341
* J.D. Candidate, 2018, Fordham University School of Law; B.A., 2012, Wesleyan
University. I would like to thank Professor Jennifer Gordon and the New York City Mayor’s
Office of Immigrant Affairs, specifically Deputy Director of Policy Sam Solomon, for their
incredibly helpful guidance throughout this process. All views expressed in this Note are mine
Imagine a day like this: you wake up in the morning to a text from your
daughter saying that she forgot her school project at home and asking you to
bring it to her. You hurry to get dressed and walk to your daughter’s school,
flashing your identification card as you run past the building’s security to get
your daughter her poster board before second period. After you hand it off,
you head to the local library where you use that same identification card to
reserve time on the computer and borrow a few books on English and
cooking. You are currently working at a local restaurant but have dreams of
becoming a chef or starting your own restaurant. Studying at the library has
become a ritual of yours now that your children are in school and you have
After the library, you head to city hall where you again show your
identification card before entering a public forum. At the forum, you speak
out against the recent use of trains for the transportation of potentially
explosive chemicals by your apartment in Queens. On your way home, you
witness a hit-and-run and you call 911. When the police arrive, they question
you about what you saw, noting that you were the only witness nearby and
warning that you may be called in to testify. You do not hesitate to share
your contact information and identification card with them, and you assure
them that you are more than willing to help.
Finally, imagine that in addition to all of this, you are an undocumented
immigrant. You have been in the United States for almost fifteen years, yet
your presence in the United States is not authorized by law and you are
subject to deportation at any time. Your undocumented status and lack of
right to remain in the United States are realities that never escape you. Yet,
reflecting on your day, you also recognize that in the city in which you
reside—the city that never asked about your legal status before issuing you a
city identification card—your presence is valid. You still eagerly await a
time when your presence will become lawful and you will not have to live in
fear. You know that nothing but legal status can change that. Still, you
appreciate that, in your city, you do not have to hide while you wait.
In January 2015, New York City launched the IDNYC program, making a
New York City identification card available to all city residents irrespective
of legal immigration status in the United States.1 The card provides its
holders access to city services and buildings; functions as a library card; and
is considered a valid form of identification by the New York City Police
Department, city health care centers and hospitals, and select banking
institutions.2 New York City is not the first city to develop a municipal
identification program, and it is not the last. Since its launch, similar
programs have either been implemented or considered in various cities across
the country.3 By facilitating access to the agencies and businesses with which
city residents are likely to interact, these cards present a creative way to
address some of the challenges posed by federal immigration law for
1. See Matt Flegenheimer, New York City to Formally Start Its Municipal ID Card
Program, N.Y. TIMES (Jan. 11, 2015),
2. The first municipal city identification program was launched in New Haven,
Connecticut, in 2007. See CTR. FOR POPULAR DEMOCRACY, WHO WE ARE: MUNICIPAL ID
CARDS AS A LOCAL STRATEGY TO PROMOTE BELONGING AND SHARED COMMUNITY IDENTITY
11 (2013), https://populardemocracy.org/sites/default/files/municipal%20id%20report.pdf
[https://perma.cc/K8BK-GXRL]. Today, similar programs exist in cities in California, New
Jersey, and the District of Columbia. Id.
3. Interview with Sam Solomon, Deputy Dir. of Policy, N.Y.C. Mayor’s Office of
Immigrant Affairs, in N.Y.C., N.Y. (Oct. 28, 2016) [hereinafter Solomon Interview] (on file
with the author).
4. See, e.g., Undocumented Immigrants in the Workplace: The Fallacy of Labor
Protection and the Need for Reform, 36 HARV. C.R.-C.L. L. REV. 345, 347–48 (2001) (arguing
that despite the existence of some federal legal protections for undocumented immigrant
laborers, undocumented immigrants lack meaningful remedies for labor exploitation and are
vulnerable to deportation if they assert their protected rights); see also Christopher Choe,
Bringing in the Unbanked off the Fringe: The Bank On San Francisco Model and the Need
for Public and Private Partnership, 8 SEATTLE J. SOC. JUST. 365, 384 (2009) (noting that
undocumented immigrants are less likely than other populations to use mainstream banking
out of fear of deportation, resulting in their having to pay higher costs for basic financial
IDNYC, however, was not designed solely for the benefit of the city’s
undocumented immigrant population.5 The program’s legislative history
reveals that the lack of valid identification was a widespread problem that
affected many groups, including the city’s homeless, elderly, youth, and
LQBTQ populations.6 In this way, IDNYC aims to do more than just defend
against the consequences of federal immigration law for city communities.7
By treating undocumented status as merely one of many factors inhibiting a
New Yorker from being able to fully engage with the city’s services and
institutions, IDNYC challenges the traditional role cities play in the
citizenship of their residents. While the federal monopoly over immigration
and citizenship is well settled,8 significant legal scholarship asserts that
citizenship as a legal concept encompasses factors that go beyond federally
bestowed legal status, including a sense of belonging or an ability to
participate fully in society.9 The multidimensionality of citizenship, in turn,
hints that actors other than the federal government can and do play a legally
permissible role in citizenship enhancement.
This Note argues that city municipal identification-card programs present
a new role for the city in citizenship. While city legislation or policy relating
to immigration is not a new phenomenon,10 municipal identification-card
programs differ from other city policies. They do not seek to bolster, or resist,
existing federal immigration laws. Instead, cities that adopt these policies
take on an affirmative role, aiming to remove barriers to citizenship for all
their residents, including undocumented immigrants. In this way, cities
bestow a new form of citizenship, which this Note terms “Affirmative City
Citizenship,” on those within their territorial boundaries.11 While
Affirmative City Citizenship is neither a substitute for a federally recognized
citizenship status nor without limitations,12 it can nevertheless have powerful
impacts on the undocumented immigrant population.
To articulate this theory of Affirmative City Citizenship, this Note
proceeds in four Parts. Part I discusses citizenship as a multidimensional
phenomenon and the central importance of the city as the place where many
of the dimensions of citizenship are realized. Next, Part II examines barriers
to citizenship in the city, beginning with a discussion of vulnerable
5. See Solomon Interview, supra note 3.
6. See N.Y.C. COUNCIL COMM. ON IMMIGRATION, COMMITTEE REPORT OF THE
GOVERNMENTAL AFFAIRS DIVISION, at 3–4 (2014) [hereinafter COMMITTEE REPORT],
7. See infra Part II.B.4.
8. See Arizona v. United States, 132 S. Ct. 2492, 2498 (2012) (“The federal power to
determine immigration policy is well settled.”).
9. See, e.g., LINDA BOSNIAK, THE CITIZEN AND THE ALIEN: DILEMMAS OF
CONTEMPORARY MEMBERSHIP 27 (2006) (articulating a broader theory of “citizenship as
membership” which encompasses “[s]tatus, rights, political engagement and identity”).
10. See infra Part II.C.
11. Affirmative City Citizenship is not a substitute for formal legal status. This Note does
not argue that local governments can effectively replace formal legal status or render the need
for federally developed legal pathways to citizenship any less important.
12. See infra Part IV.B.
populations generally and then turning to look at the case of undocumented
immigrants specifically. Part III considers city responses to these challenges,
briefly examining sanctuary city policies and then analyzes New York City’s
IDNYC program. Finally, Part IV articulates a theory of Affirmative City
Citizenship, exploring its strengths and potential challenges. This Note
concludes that while municipal identification programs can remove barriers
to citizenship for constituents, their success among undocumented
immigrants relies in part on a coexistence with other proimmigrant policies
that do directly conflict with federal immigration law. Therefore, this Note
recommends that cities seeking to support their undocumented immigrant
residents adopt municipal identification-card programs together with
sanctuary city policies.
I. CITIZENSHIP AND THE CITY
Throughout American legal history, the judiciary has treated citizenship
differently in different contexts.13 As a result, the meaning of citizenship and
the privileges and rights associated with it are more contested than
acknowledged.14 Part I.A provides an overview of the different theories of
citizenship as articulated by courts and scholars of citizenship. Part I.B then
demonstrates that citizenship is multidimensional and encompasses elements
beyond formal legal status. Next, Part I.C discusses the contemporary role
that cities play in the lives of American residents. Part I.D concludes with a
presentation of cities as spaces where residents exercise many of the rights
and privileges inherent in citizenship.
A. Citizenship as Legal Status
In U.S. immigration law, the term “citizen” refers to a legal status
bestowed onto nonnatives by the federal government for which attainment is
most commonly associated with the right to vote in federal elections.15 In
addition to voting rights, legal citizenship is also required to run for public
office, to become eligible for most federal jobs, and to receive priority when
petitioning to bring family members to the United States.16 Only U.S.
citizens can obtain citizenship for children born outside of the United States
or obtain a U.S. passport, which is a prerequisite for receiving assistance from
the U.S. government while traveling abroad.17 The federal government also
13. See infra Part I.A.
14. Even one of the most central elements of modern-day citizenship—its association with
the nation-state—is contested by citizenship scholars. See, e.g., BOSNIAK, supra note 9, at 5
(“Citizenship’s intimate relationship to the nation-state is not intrinsic but contingent and
historical, and the forms and locations of citizenship, as we conventionally understand the
term, are more varied than ordinarily acknowledged.”); see also Monica Varsanyi,
Interrogating “Urban Citizenship” Vis-à-Vis Undocumented Migration, 10 CITIZENSHIP
STUD. 229, 229–30 (2006).
15. What Are the Benefits and Responsibilities of Citizenship?, USCIS,
[https://perma.cc/D8GYE4WS] (last visited Sept. 21, 2017).
grants others forms of lawful status to noncitizens, including lawful
permanent residence, or green cards,18 and temporary work and student
The power to confer or deny national citizenship is derived from Article I,
Section 8, clause 4 of the Constitution, which entrusts Congress with the
power to “establish an uniform Rule of Naturalization.”20 This power is
unique to the federal government and courts have consistently been unwilling
to scrutinize Congress or the executive branch’s decisions in this area.21 The
U.S. Supreme Court first articulated this high level of deference in 1889 in
Chae Chan Ping v. United States.22 Chae Chan Ping involved a challenge
to the federal government’s decision to retroactively prohibit a Chinese
laborer who had gone abroad from returning to the United States.23 The
Court upheld the federal government’s denial of reentry, even though such a
policy conflicted with the terms of an international treaty, stating that the
national government’s right to exclude foreigners was “an incident of
sovereignty” and a power that “cannot be granted away or restrained on
behalf of any one.”24
Despite this unquestioned authority to grant and deny lawful immigration
status, the same deference has not been applied toward the federal
government’s treatment of noncitizens already residing in the United
States.25 An early example of this contrast is the Supreme Court’s 1896
decision in Yick Wo v. Hopkins,26 where the Court held that Chinese
immigrants had standing to challenge the constitutionality of a local
ordinance on equal protection grounds, even though they were noncitizens.27
Ten years later, in Wong Wing v. United States,28 the Court also rejected the
federal government’s argument that it could imprison Chinese laborers for
violations of immigration law without a trial by jury as a result of their illegal
entry into the country.29 The rights of noncitizens have been reaffirmed as
recently as 1982 when the Court decided in Plyer v. Doe30 that a Texas law
18. Lawful Permanent Residents, DEP’T HOMELAND SECURITY,
[https://perma.cc/SLB8-UJMU] (last visited Sept. 21, 2017).
19. Nonimmigrant Classes of Admission, DEP’T HOMELAND SECURITY,
[https://perma.cc/8MYJ-Z3R5] (last visited Sept. 21, 2017).
20. U.S. CONST. art. I, § 8, cl. 4.
21. A recent affirmation of this federal power can be found in Arizona v. United States,
132 S. Ct. 2492, 2498 (2012).
22. 130 U.S. 581 (1889).
23. Id. at 623–24.
24. Id. at 609.
25. See BOSNIAK, supra note 9, at 55.
26. 118 U.S. 356 (1886).
27. Id. at 369 (describing the provisions of the Fourteenth Amendment as “universal in
their application, to all persons within the territorial jurisdiction, without regard to any
differences of race, of color, or of nationality”).
28. 163 U.S. 228 (1896).
29. Id. at 238.
30. 457 U.S. 202 (1982).
denying public education to undocumented immigrant children was a
violation of the Equal Protection Clause.31
Courts’ inconsistent treatment of the federal government’s ability to deny
citizenship or lawful status,32 on the one hand, and to treat noncitizens
differently,33 on the other, demonstrates that, in the legal context, the term
“citizen” encompasses more than federal status. In The Citizen and the Alien,
Linda Bosniak reconciles this disparate treatment by arguing that citizenship
in the United States is a “hybrid legal category” that crosses over into two
distinct legal domains.34 The first, “membership in the national community,”
includes the federal government’s power to admit or exclude immigrants into
the United States and its power to deport those unlawfully present, both of
which are broad.35 The second domain, the “rights of persons,” includes the
federal government’s ability to regulate the daily lives of undocumented
immigrants residing in the United States, which she argues is much more
B. Multidimensional Citizenship
Bosniak’s “hybrid legal category” theory has broader implications for
understanding citizenship. If undocumented immigrants present in the
United States are entitled to basic constitutional protections even as
noncitizens, it follows that only some of the rights and privileges associated
with a U.S. residence are tied to the legal title of “citizen.”37 In other words,
while the American understanding of citizenship undoubtedly encompasses
a federally recognized legal status, it also encompasses other rights and
privileges that could exist regardless of one’s federal immigration status.
Support for a multidimensional understanding of citizenship comes from
the well-documented struggles of certain groups, such as minorities or people
with disabilities, to exercise rights typically associated with citizenship
despite their status as citizens.38 There have also been instances where those
without legal status have successfully exercised some of citizenship’s rights
and privileges.39 In Suburban Sweatshops: The Fight for Immigrant Rights,
Professor Jennifer Gordon chronicles the efforts of a group of immigrants,
including undocumented immigrants, to combat labor exploitation and
abusive working conditions in the Long Island suburbs.40 She examines how
the group successfully drafted and lobbied for what became the first law in
the nation to drastically raise the sanctions against employers for failing to
pay earned wages.41 Their story demonstrates that “the right to seek social
change through the political process” is one that, although seemingly central
to modern notions of citizenship, can successfully be exercised by
immigrants without formal status.42
In sum, the barriers that some legal citizens face in exercising elements of
citizenship43 and the ability of noncitizens to exercise elements of citizenship
without legal status44 both demonstrate that citizenship in practice entails
more than federal legal status. It follows, then, that actors other than the
federal government can play a role in enhancing or inhibiting a U.S.
resident’s ability to exercise the rights and privileges associated with, but not
conferred by, traditional conceptions of citizenship.
C. The City as the Overseer of Daily Life
Much has been written about the role of cities in progressive
policymaking,45 but exploring this role requires an understanding of the reach and
limits of city power. Cities today are empowered through the home rule
doctrine to oversee the majority of functions and services relied upon by their
residents on a daily basis.46 Under the home rule doctrine, local governments
derive their power from the states through “a state legislative provision or
action allocating a measure of autonomy to a local government, conditional
on its acceptance of certain terms.”47 Developed in the late nineteenth and
early twentieth centuries, the home rule movement marked a significant
departure from the then-existing “Dillon’s Rule,” under which municipalities
American Nationals and Interstitial Citizenship, 85 FORDHAM L. REV. 1673, 1712 (2017)
(“[T]here are certain rights that are enjoyed by all persons regardless of citizenship.”).
39. See GORDON, supra note 37, at 298.
40. Id. at 3–5.
41. Id. at 277.
42. Id. at 278.
43. See, e.g., Belt, supra note 38, at 1497–98.
44. See GORDON, supra note 37, at 278.
45. See, e.g., Richard Briffault, Home Rule and Local Political Innovation, 22 J.L. & POL.
1, 2 (2006) (characterizing reforms adopted by San Francisco and New York City in the early
2000s as “illustrative of a broader phenomenon—political innovation and reform at the local
level”); Kirsten Engel, State and Local Climate Change Initiatives: What Is Motivating State
and Local Governments to Address a Global Problem and What Does This Say About
Federalism and Environmental Law?, 38 URB. LAW. 1015, 1016 (2006) (analyzing the
significance of emerging state and local environmental law initiatives); Matthew J. Parlow,
Progressive Policy-Making on the Local Level: Rethinking Traditional Notions of
Federalism, 17 TEMP. POL. & C.R.L. REV. 371, 375 (2008) (stating “local governments have
led the way in many areas of public policy”).
46. See generally Paul Diller, Intrastate Preemption, 87 B.U. L. REV. 1113 (2007).
47. Home Rule, BLACK’S LAW DICTIONARY (10th ed. 2014).
possessed only the powers expressly conferred onto them, much like
corporations.48 Almost all states have adopted some form of the home rule
doctrine49 and the home rule movement is seen as a legal recognition of the
importance of city power and enhanced local autonomy.50 Today, while not
sovereigns in their own right, cities possess significant power to govern
matters of local concern.51
Home rule doctrines vary across states.52 Nonetheless, most local
governments have been granted power over most of the functions that have
the greatest impact on the lives of their residents.53 As one scholar states,
cities are responsible for the services “most vital to the preservation of
life . . . liberty . . . property . . . and public enlightenment.”54 These include
local police, fire, public health, local courts and prosecutors, street
maintenance, trash collection and sanitation, zoning, taxing, education, and
libraries.55 This also means that when things go wrong, city residents are
more likely to turn to local leaders, converting city governments into “first
In addition to overseeing local activity, cities may also be uniquely
positioned to confront the factors, such as discrimination and ignorance, that
have historically created barriers to daily life for vulnerable populations.57
Professor Gerald E. Frug, a legal scholar in local and city governments,
argues that cities are different from any other entity because, unlike voluntary
associations such as country clubs or church groups, cities attract diverse
populations who are then forced to interact with each other in a shared
space.58 This “fortuitous association” makes the city ideally situated to
promote the type of “community building” required to develop political
solutions to divisiveness.59 As Frug states, cities “offer an opportunity to
expand our capacity to understand, cope with, and, hopefully, enjoy the
variety of people who live in America,” which he sees as vital to overcoming
D. The City as Supporter of Democracy
Beyond daily activities, cities also promote civic participation and foster
the kind of experimentation required to help fundamental rights transition
from ideals to practice, both of which are central to citizenship.61 When
governance occurs in closer, more localized units, city residents are more
inclined to be interested in politics because they are more likely to have
access to information and to feel that they have a chance to influence the
outcome of decisions.62 Thus, local governments promote civic participation
in a way that state and federal governments cannot.63 As Frug states, “On a
local level, democracy can be a lived experience . . . . In a state or
metropolitan region where millions of people live, popular control of public
policy becomes more rhetorical than real.”64
Cities are also central to converting rights from ideals to practice. In their
theory of democratic experimentalism, Professors Michael C. Dorf and
Charles F. Sabel argue that the desire to see fundamental rights as inherent,
regardless of circumstance, often obscures how even fundamental rights
require adaptation to local circumstances before they can be fully realized.65
Pointing to women’s rights as an example, they point out that even though
women have been recognized as equal citizens for almost 100 years, litigation
continues over policies for pregnancy in the workplace and the legality of
allwomen’s colleges.66 According to Sabel and Dorf, experimentation on the
local level is crucial because plaintiffs bring challenges to local courts for
rights violations, and remedies are often crafted in consideration of local
circumstances.67 This kind of adaptation occurs even if the rights themselves
stem from federal laws but would not be possible at the state or federal
Thus, as overseer of daily activity, promoter of civic participation, and
supporter of fundamental rights, the city is well positioned to promote many
of the dimensions of citizenship beyond legal status. Yet various city
residents continue to face impediments to exercising these elements of
II. BARRIERS TO CITIZENSHIP
Many different marginalized and vulnerable groups are unable to exercise
dimensions of citizenship. Part II begins with a discussion of barriers to
citizenship for a variety of vulnerable groups and then turns to the special
case of undocumented immigrants.
A. Vulnerable Groups Generally
Academic scholars across fields argue that factors such as bias,
discrimination, and special circumstances operate to deny different
vulnerable or marginalized populations some of the rights and privileges to
which they are equally entitled.69 Several examples illustrated below
demonstrate how elements of city life continue to marginalize certain groups,
including racial and ethnic minorities, women, and people with disabilities.
Despite possessing the legal right to vote, some groups face challenges to
participation in the political process. Throughout American history, various
groups including African Americans have struggled to exercise their voting
rights even after becoming legally entitled to them.70 Legal scholars maintain
that certain groups continue to face barriers to political participation. One
such group is disabled Americans, who remain challenged by poorly selected
voting locations with limited wheelchair accessibility, inadequate voting
technology, and ignorant election officials, despite legislative efforts aimed
at improving access.71 Another scholar has shown that minority voters are
more likely than white voters to move close to voter registration deadlines,
thus missing their chance to vote in an election.72
Racial profiling and discrimination also inhibit certain minority groups
from fully participating in American society. For instance, in a recent class
action lawsuit certified against the New York City Police Department,
African American and Latino plaintiffs argued that the city’s stop and frisk
procedures caused them to live in fear.73 The mass incarceration of African
Americans is another example because, not only are incarcerated African
Americans unable to live as free citizens while in jail, but their opportunities
for economic advancement are often foreclosed by their criminal record upon
B. The Special Case of Undocumented Immigrants
In addition to the above challenges shared by citizens and noncitizens
alike, undocumented immigrants face hurdles to city life that stem uniquely
from their unlawful status. Part II.B turns to a discussion of these hurdles,
explaining how limited legal protections, an emerging role for local actors in
the enforcement of federal immigration law, and the rise in local immigration
legislation combine to create additional challenges to city life for
undocumented immigrant residents.
1. The Consequences of Undocumented Status
Undocumented immigrants share similar impediments with their
citizenneighbors and encounter others that uniquely stem from their lack of lawful
presence.75 There are an estimated 11.1 million undocumented immigrants
living in the United States today who can be deported by the federal
government at any time.76 While undocumented immigrants do not possess
any of the rights or privileges that accompany legal U.S. citizenship,77 the
Supreme Court has recognized that undocumented immigrants are “persons”
under the Constitution, entitled to both equal protection and due process of
Beyond these constitutional protections, federal law makes undocumented
immigrants ineligible for many federal public service programs, including
the Supplemental Nutrition Assistance Program (SNAP) and nonemergency
Medicaid, empowering state and local governments to do the same.79
Additionally, even though undocumented immigrants constitute
approximately five percent of the United States workforce,
80 it remains
illegal to hire them, and those who are employed enjoy fewer federal
workplace protections than their lawfully present coworkers.81
Although all states have the same power to regulate the health, safety, and
welfare of their residents, they have made very different decisions about what
rights to grant undocumented residents.82 For example, in New York State,
undocumented immigrants have a right to emergency hospital care, worker’s
compensation, labor protections, state public benefits, and in-state tuition at
the State University of New York so long as they attended a New York high
school for at least two years.83 By contrast, in Ohio, undocumented
immigrant residents are not eligible for in-state tuition, scholarships, or state
driver’s licenses, and are not named as eligible for worker’s compensation.84
Under Ohio’s public health system, undocumented children are not entitled
to health insurance, and Medicaid is not available to undocumented pregnant
An obvious alternative to living with an undocumented status would be to
undergo the naturalization process and become a U.S. citizen. However,
since 1986,86 the federal government has failed to pass comprehensive
immigration reform (CIR) or legislation providing for visas, paths to
citizenship, and enforcement mechanisms,87 essentially foreclosing the
opportunity for today’s undocumented immigrants to naturalize.88 There are
81. While in the past workplace rights were frequently extended to undocumented
immigrants, the Supreme Court weakened those protections when it held that undocumented
immigrants were not entitled to monetary compensation after being illegally fired for
supporting a union. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 140 (2002).
82. See, e.g., Haeyoun Park, Which States Make Life Easier or Harder for Illegal
Immigrants, N.Y. TIMES (Mar. 29, 2015), http://www.nytimes.com/interactive/2015/03/
83. See James L. Seward, What Benefits Can Illegal Aliens Receive?, N.Y. ST. SENATE,
84. MICHAEL A. RODRIGUEZ ET AL., GLOB. HEALTH INST., UNIV. OF CAL., CREATING
CONDITIONS TO SUPPORT HEALTHY PEOPLE: STATE POLICIES THAT AFFECT THE HEALTH OF
UNDOCUMENTED IMMIGRANTS AND THEIR FAMILIES 8 (2015), http://healthpolicy.ucla.edu/
86. The Immigration Reform and Control Act of 1986 (IRCA) included provisions
prohibiting the hiring of illegal immigrants and employer sanctions, and it also legalized
groups of undocumented immigrants provided they met certain criteria regarding length of
residency, lack of criminal background, and an admission of guilt. See generally Immigration
Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359 (codified as amended in
scattered sections of 8 U.S.C.).
87. See Comprehensive Immigration Reform, MIGRATION POL’Y INST.,
[https://perma.cc/R8LE-3VJT] (last visited Sept. 21, 2017) (describing CIR as legislation that
“would marry increased border enforcement with legalization for unauthorized immigrants
and the ability to bring in future workers needed by the U.S. labor market”).
88. The last CIR bill proposed was the Border Security, Economic Opportunity, and
Immigration Modernization Act, which included provisions for enhanced border protection as
well as a means for undocumented immigrants to legalize after a ten-year probationary period
known as “Registered Provisional Immigrant” status. See Border Security, Economic
Opportunity, and Immigration Modernization Act, S. 744, 113th Cong. § 2101 (as passed by
Senate, June 27, 2013); see also S. REP. NO. 113-40, at 83–86 (2013). The bill passed the
many reasons attributed to the government’s inaction. Some argue that the
federal government’s refusal to address illegal immigration is motivated by
the economic benefits it derives from exploiting undocumented immigrant
labor,89 while others take a more neutral position, asserting that the national
sentiment toward immigration is simply too politically polarized to ever
achieve national consensus.90 Regardless of the justification, Congress’s
inability to pass CIR has, until recently, coincided with a steady increase in
the number of undocumented immigrants in the country—a rising share of
whom have lived in the United States for at least ten years.91
2. The Shift to Local Immigration Law Enforcement
Despite the failure of CIR, Congress has passed immigration-related
legislation since 1986, but its focus has been on creating an increasingly
enhanced role for state and local actors in immigration enforcement.92
Following Congress’s lead, the executive branch has also developed
programs and authorized activity that empowered local actors to enforce civil
and criminal immigration law.93
Congress first called on local cooperation in 1996 with the passage of the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA).94 IIRIRA expanded the role of local and state officials in
enforcing federal immigration law in three ways. First, it added a provision
to immigration law permitting the Attorney General to empower local
officials to enforce civil immigration laws whenever there was “an actual or
Senate on June 27, 2013, but died shortly thereafter when the House of Representatives refused
to consider it. See Philip E. Wolgin, 2 Years Later, Immigrants Are Still Waiting on
Immigration Reform, CTR. FOR AM. PROGRESS (June 24, 2015),
89. See, e.g., Cristina M. Rodríguez, The Significance of the Local in Immigration
Regulation, 106 MICH. L. REV. 567, 590 (2008) (“The federal government is therefore walking
the line between giving full effect to the limitations it has set on immigrant admissions and
thwarting the decisions and preferences of U.S. consumers, whose market preferences have
helped give rise to the unauthorized population.”).
90. See generally S. Karthick Ramakrishnan & Pratheepan Gulasekaram, The Importance
of the Political in Immigration Federalism, 44 ARIZ. ST. L.J. 1431 (2012).
91. In 1990, there were an estimated 3.5 million undocumented immigrants living in the
United States, whereas today that number is closer to 11.3 million. See Krogstad et al., supra
note 80. For an interesting discussion into potential causes for this increase, see generally
Daniel Griswold, Comprehensive Immigration Reform: What Congress and the President
Need to Do to Make It Work, 3 ALB. GOV’T L. REV. ix (2010). Griswold contends that the
federal government’s failure to pass CIR and its focus on enforcement has actually contributed
to the growth of the undocumented immigrant population in the United States in two ways. Id.
at xiv. First, harsher enforcement at the border has diverted smuggling routes to more remote
areas which are, in turn, harder to police. Id. at xv. Second, the more difficult it becomes for
immigrants to enter the country illegally, the more likely they are to stay once in the United
States since they understand that if they leave again, they may not be able to return. Id. at xvi.
92. See Barbara E. Armacost, “Sanctuary” Laws: The New Immigration Federalism,
2016 MICH. ST. L. REV. 1197, 1205–1206.
93. See Jennifer M. Chacón, The Transformation of Immigration Federalism, 21 WM. &
MARY BILL RTS. J. 577, 598 (2012).
94. Pub. L. No. 104-208, 110 Stat. 3009 (1996) (codified as amended in scattered sections
of 8 and 18 U.S.C.).
imminent mass influx of aliens . . . requiring an immediate Federal
response.”95 Second, it added section 287(g) to the Immigration and
Nationality Act, empowering trained local law enforcement officers to
enforce federal immigration law.96 Finally, it prohibited states and localities
from barring employees from reporting immigration status data to the federal
That same year, Congress passed the Personal Responsibility and Work
Opportunity Reconciliation Act of 1996, which denied noncitizens public
benefits and explicitly authorized state and local officials to do the same.98
This act increased the burden on local actors because its passage meant that
social service, healthcare, and education workers who provided federal
services were also expected to verify immigration statuses and share that
information with the federal government.99 Congress also passed the
AntiTerrorism and Effective Death Penalty Act of 1996,100 which included a
provision that authorized state officers to arrest and detain noncitizens who
had “previously been convicted of a felony in the United States.”101 While
some localities have nonetheless enacted local laws to protect the information
of their undocumented residents,102 these federal laws at a minimum marked
an ideological shift among national legislators that local actors had a role to
play in the enforcement of federal immigration laws.103
After September 11, 2001, the executive branch picked up where Congress
left off, further empowering local actors through three main acts. First,
Attorney General John Ashcroft issued a revised memorandum stating that
state and local officials had inherent authority to arrest and detain violators
103. See Ridgley, supra note 99, at 59.
of the immigration laws, including civil laws.104 Second, the Immigration
and Naturalization Service (INS)105 began to enter various categories of civil
immigration information into the National Crime Information Center (NCIC)
database, thereby providing law enforcement at various levels with the ability
to access immigration information during routine police activity.106 Finally,
the attorney general and his staff began to attend local meetings and
informally encourage state and local law enforcement officials to take part in
immigration law enforcement efforts.107
In addition to these agency database and policy changes, perhaps the most
controversial executive branch activity came from its development of two
programs: the 287(g) and Secure Communities programs.108 The 287(g)
program was established by IIRIRA in 1996, but it was not until after
September 11, 2001, that its provisions were first utilized.109 It authorizes
local and state law enforcement agents to enter into agreements with the
federal government by executing Memoranda of Understanding (MOUs).110
Once an MOU is established, local police officially possess the authority not
only to enforce criminal immigration law but also to enforce civil
immigration law so long as the local actors agree to be trained and supervised
by Immigration and Customs Enforcement (ICE).111
As of August 2017, ICE has 287(g) agreements with sixty law enforcement
agencies in eighteen states.112 Although historically there were three types
of 287(g) agreements,113 all agreements in existence today fall under the “jail
enforcement model.”114 Under this model, local officers are empowered to
interrogate individuals arrested on state or local charges about their
citizenship status and to place immigration detainers on arrestees who they
believe to be eligible for removal.115
A more recent executive branch program to further collaborate with local
and state immigration law enforcement is the Secure Communities
program.116 Launched in 2008, the program requires local jails to share
fingerprinting data with the federal government, which is then submitted and
compared to the FBI’s criminal and ICE’s immigrant databases.117 Thus, the
program alerts the federal government whenever noncitizens are arrested and
in the custody of local and state law enforcement.118 Even though the federal
government was explicit that this program would target only high-level
offenders, many criticized the program, claiming that it was actually intended
to facilitate the deportation of undocumented immigrants who either lacked
criminal records altogether or whose criminal record consisted only of minor
offenses, such as traffic violations.119
The Secure Communities program has proven instrumental in deportation
efforts. By September 2011, ICE reported having received over 11 million
fingerprint submissions, resulting in almost 700,000 database matches and
the removal of more than 142,000 people.120 Although the Secure
Communities program was terminated in 2014 after significant criticism,121
it was reactivated on January 25, 2017, following the inauguration of
President Donald Trump.122 Today, ICE reports that since its revival, the
Secure Communities program has led to the removal of more than 10,290
3. The Rise in Local Immigration Regulation and Questions of Federal Preemption In addition to the federal government’s enlisting of local actors, and perhaps in response to it, unprecedented numbers of states and cities have
also begun to make their own immigration law and policy.
124 In the first six
months of 2007
, for example, over 1400 immigration-related bills were
introduced, more than 170 of which were enacted in forty-one states.125 This
was more than triple the number of state immigration laws enacted in the
entire year of 2005.126 For cities, by July 2007, one source documented over
250 local ordinances either in existence or under consideration.127 While
these policies have diverged in their intent and treatment of immigrant
communities, they are united in that they represent powerful potential
challenges to the federal monopoly over immigration regulation.128
Some local immigration laws and ordinances have adopted policies
seeking to further exclude immigrants from their communities.129 These
policies take a variety of forms but generally seek to “enforce linguistic
assimilation”; “deny constitutional and civil rights”; “prohibit ‘illegal
immigrants’ from accessing public services, housing, and employment”; or
any combination thereof.130 Examples of such policies include laws
prohibiting landlords from renting to undocumented immigrants or denying
business licenses to employers who hire undocumented residents.131 In
addition, cities have sought to achieve similar exclusionary goals by way of
facially neutral policies, such as an antiloitering law that targets
undocumented day laborers who congregate while waiting for work.132
Through these policies, localities further their role in immigration law
enforcement indirectly by making life harder for immigrants and making
them less likely to settle there.
4. City Life for Undocumented Immigrant Residents
The blurring of roles between the federal government and local actors in
immigration law enforcement poses substantial challenges for city
communities.133 Scholars and civil rights lawyers argue that these practices
increase civil rights violations by police134 and disenfranchise immigrant
members of the city community—consequences that hurt the public welfare,
health, and safety of the entire city.
When undocumented immigrants are scared to interact with law
enforcement, they become easy targets for criminal activity because their
attackers know they are unlikely to report the crime.135 One example is the
domestic violence context, in which “[u]nauthorized alien women across the
country are battered by spouses who exploit the women’s fear of deportation
in order to continue the abuse.”136 Undocumented immigrants are also
frequently targets of scams promising status adjustment or legalization, of
bribery by corrupt officials, and of labor exploitation by employers.137 Not
only does a lack of trust deter undocumented immigrants from reporting
crimes against them, but it also makes it less likely that they will come
forward to report crimes against others or to cooperate as witnesses.138 This
hinders local law enforcement’s ability to catch criminals and keep
communities safe.139 Congress itself has acknowledged this reality by
creating special visa categories for undocumented-immigrant victims that
report certain crimes, but these visas have not been able to counteract the
reporting deterrent already caused by federal policies.140
Fear of deportation instills a lack of trust in public institutions beyond law
enforcement, diminishing the public health and welfare of
undocumentedimmigrant communities.141 When immigrants with serious and potentially
contagious health problems are afraid to seek help for fear that hospitals and
other public health centers will report them, they harm not only themselves,
but also their family members, coworkers, neighbors, classmates, and any
others who interact with them.142 Undocumented immigrants may also be
less likely to receive routine preventive care, increasing the likelihood that
they will need to be hospitalized later on.143 In addition, if parents are afraid
to talk to their children’s teachers and school administrators, this could hurt
the success of their children, further hindering their ability to succeed and to
assimilate into U.S. culture.144
Beyond public health, safety and welfare, critics of the 287(g) and Secure
Communities programs argue that these programs incentivize officers to stop
people who “appear” undocumented, leading to increased incidents of racial
profiling and civil rights violations.145 Although the federal government
claimed that these programs were intended chiefly to target undocumented
immigrants with serious criminal convictions,146 a report submitted by the
American Civil Liberties Union (ACLU) to the U.S House of Representatives
Committee on Homeland Security in 2009 found that many undocumented
immigrants sent to federal authorities as a result of the 287(g) program had
actually committed only a minor crime, such as a traffic violation.147
Utilizing data combined with various investigations throughout the country,
the ACLU concluded that the 287(g) program was leading to illegal,
racebased immigration law enforcement, including racial profiling.148 Other
critics of the program argue that ICE does not provide sufficient guidance or
supervision to local law enforcement and that these programs are costly for
localities to implement.149
Under the Obama administration, the federal government itself
acknowledged the civil rights violations promoted by the Secure
Communities and 287(g) programs.
150 In 2011
, a Task Force on Secure
Communities developed by the Homeland Security Advisory Committee
issued a report identifying a disparity between the program’s aim to target
high-level offenders and its practices.151 ICE itself acknowledged this
finding in its response to the report a year later and announced new
procedures that would aim to remedy this disparity.152 Despite these
acknowledgements, however, critics maintained that even under the revised
program, little progress was made in curbing unlawful police practices.153
Under the Trump administration, known for its tough stance on
immigration,154 a continued effort at reforming the Secure Communities
program seems unlikely.
III. CITY EXPERIMENTATION
Given that a wide range of American residents today, including
undocumented immigrants, face impediments to exercising elements of
citizenship in the city, what can cities do? Part III begins with a discussion
of scholarship addressing this question and argues that existing resolutions
fail to recognize an affirmative role for cities in the citizenship space,
regardless of federal immigration law. It next analyzes the IDNYC program
to explore whether municipal identification-card programs can offer an
alternative mechanism for addressing some of the impediments to citizenship
undocumented city residents face.
A. Sanctuary Cities
One approach adopted by progressive cities in the face of federal
immigration law has been to adopt noncooperation or “sanctuary city”
policies.155 While the concept of a sanctuary city actually predates the
federal immigration law changes of 1986, a sanctuary city today is
understood to mean a municipality that has refused to partake in actions that
would contribute to the deportation of its undocumented residents.156
Sanctuary policies come in a variety of forms, including city council
resolutions, municipal ordinances, executive orders from city mayors, and
local law enforcement memoranda.157 Some policies also incorporate
additional public health and welfare benefits or are simultaneously supported
by other initiatives, such as educating public service employees on
nonEnglish languages or providing additional benefits to their undocumented
immigrant residents that would not be available at the federal level.158
Localities that adopt sanctuary city policies publicly refuse to assist the
federal government in the enforcement of federal immigration laws.159 Such
policies have been officially challenged only twice in the courts,160 and
neither case established a definitive answer as to their legality.161 In the
current political climate, the most frequent threat to sanctuary policies comes
not from the courts, but from state and federal legislators threatening to cut
or altogether withhold funding to localities that have adopted such
policies.162 Thus, while proimmigrant sanctuary city policies across the
country have largely gone unchallenged, their strength remains vulnerable to
changes in political leadership at both the state and federal levels.163
Professor Rose Cuison Villazor uses San Francisco’s sanctuary city policy
to demonstrate how such policies can bestow elements of citizenship on their
residents.164 Utilizing Bosniak’s multidimensional theory of citizenship,165
Villazor looks at the ways in which San Francisco’s sanctuary city policy
managed to promote alternative forms of citizenship for its undocumented
residents, including what she terms “Citizenship as Rights,” premised on the
right not to be reported and thus to obtain full access to services within the
city.166 Villazor also discusses “Citizenship as Public Engagement,” which
she defines as the right to engage in public discourse167 and “Citizenship as
Identity,” which she argues extended a sense of identity and belonging to the
city’s residents.168 By refusing to assist the federal government in
violated its sanctuary city policy); see also Sturgeon v. Bratton, 95 Cal. Rptr. 3d 718 (Ct. App.
2009) (upholding the constitutionality of the Los Angeles Police Department’s sanctuary city
policy in the face of a challenge by a city taxpayer).
161. For a discussion of the legality of sanctuary city policies, see generally Bill Ong Hing,
Immigration Sanctuary Policies: Constitutional and Representative of Good Policing and
Good Public Policy, 2 U.C. IRVINE L. REV. 247 (2012).
162. See, e.g., Matthew Burns, Proposal Would Punish ‘Sanctuary Cities’ in N.C.,
WRAL.COM (May 11, 2016),
http://www.wral.com/proposal-would-punish-sanctuary-citiesin-nc/15696381/ [https://perma.cc/B6QH-65MU] (tracking the progress of Senate Bill 868,
sponsored by North Carolina Senator Buck Newton, which would deny road and school
funding to any sanctuary cities in the state); see also Alan Neuhauser, Sanctuary Cities Brace
for Trump Crackdown on Immigration, U.S. NEWS & WORLD REP. (Nov. 18, 2016),
163. The most recent presidential election provides a timely example. During his
campaign, President Trump vowed to cut all federal funding to sanctuary cities, although he
failed to detail which policies he would target or to provide an explanation for the legality of
such an action. See Neuhauser, supra note 162. In April 2017, Attorney General Jeff Sessions
announced that the federal government would begin to withhold grant money to cities that do
not remove barriers to the enforcement of federal immigration law. See Charlie Savage,
Sanctuary Cities Face Aid Cuts as Justice Dept. Tightens Screws, N.Y. TIMES (Apr. 21, 2017),
[https://perma.cc/B7SK-MJD4]. A similar order issued by the Trump administration in
January 2017, however, was recently blocked from going into effect by a California judge who
determined the order was likely to be found unconstitutional. See Dan Levine, U.S. Judge
Blocks Trump Order to Restrict Funding for ‘Sanctuary Cities,’ REUTERS (Apr. 25, 2017),
164. Rose Cuison Villazor, “Sanctuary Cities” and Local Citizenship, 37 FORDHAM URB.
L.J. 573, 575 (2009).
165. See supra Part I.B.
166. See Villazor, supra note 164, at 592–95.
167. Id. at 595–97.
168. Id. at 597.
immigration law enforcement, sanctuary cities bestow elements of
citizenship on their undocumented city residents.169
Sanctuary city policies undoubtedly present a mechanism for cities to
support their undocumented immigrant residents. However, such policies
remain vulnerable to changing political landscapes, as the recent election of
President Donald Trump has demonstrated.170 Scholarship focused on
sanctuary city policies neglects to consider how cities can and do promote
the inclusion of all residents, including undocumented immigrant residents,
while remaining within the purview of city power.171 Municipal
identification programs represent such an alternate possibility.
B. New York City’s IDNYC Program
As discussed in the Introduction, progressive cities across the country have
begun to experiment with making a city identification card available to all
city residents, irrespective of immigration status.172 One such experiment is
New York City’s IDNYC program, which launched in January 2015 and
which, as of March 31, 2017, has over 1 million enrollees.173 As the largest
municipal identification program in the country,174 IDNYC offers a useful
lens through which to analyze city identification-card programs generally.
The problems New York City sought to remedy through IDNYC, its core
features, challenges that arose during its design and implementation phases,
and early data from the program’s mixed-methods evaluation175 all speak to
the strength of these programs as city policy on a broader scale.
1. Overview of IDNYC
Creating a municipal identification-card program was part of Mayor Bill
de Blasio’s campaign and became an immediate priority when he assumed
office.176 The bill, Introduction 253, was signed into law in July 2015 and
shortly afterwards, Mayor de Blasio issued an order designating the New
York City Human Resources Administration (HRA) to administer the
program.177 HRA released proposed regulations which underwent a period
of notice and comment rulemaking and were ultimately issued in final form
in November 2014.178 The card officially became available to New Yorkers
and within weeks, interest in the card so exceeded expectations that the city
had to create what they called “pop-up” enrollment centers—additional
short-term registration areas—in places with high demand.179
To apply for an IDNYC card, applicants are required to show proof of
identity and address, which can be satisfied in part using foreign
identification documents including a non-U.S. passport, driver’s license, or
consular identification card.180 Applicants are not asked about their
immigration status, and the application information on the IDNYC website
is available in over thirty languages.181 Once obtained, the New York City
Police Department, city agencies, and public buildings consider the IDNYC
card an acceptable form of identification.182 The card also functions as a
library card, can be synced to the New York City Health and Hospitals
medical records database, and provides prescription drug benefits and
discounts at various gyms and entertainment centers throughout the city.183
In addition, over forty cultural institutions offer free or discounted
memberships to cardholders, and over a dozen banks and credit unions accept
the card as proof of identity when cardholders apply to open a bank
2. IDNYC’s Legislative History and Amendments Since Launch
The legislative history of IDNYC reveals that the program’s chief aim was
to help New York City residents who needed a valid form of
identification185—a need the city discovered was widespread.186 While this
undeniably applied to undocumented immigrants living in the city, of which
there are an estimated 525,000,187 a committee report on Introduction 253
also discusses many other groups of New Yorkers who are frequently unable
to obtain a valid form of identification, including homeless residents,
formerly incarcerated residents, youths, elderly people, and members of the
LGBTQ community.188 For example, the report states:
LGBTQ youth who are rejected by their family because of their sexual
orientation and gender identity may end up homeless without any
documentation to establish their identity. In New York State, the average
age at which lesbian, gay, and bisexual youth become homeless is 14 and
the average age that transgender youth become homeless is 13. The
problems for transgender youth are often exacerbated. Like transgender
adults, transgender youth struggle when trying to obtain appropriate
identification that accurately reflects their gender.189
Not having proper identification proved to be a significant barrier for New
Yorkers seeking to access a variety of services and even buildings within the
city.190 The report points out that identification is often required to access
buildings, receive medical care, get prescriptions, and open a bank
The widespread lack of identification card was also a challenge for the
New York City Police Department whose officers are not permitted to issue
summonses—even for low level violations such as riding a bike in violation
of traffic rules or disorderly conduct—to anyone without an identification
card.192 The report further notes that “[p]eople rely on identification for a
myriad of reasons, including . . . for their own self-esteem.”193 Testimony
from the hearing on Introduction 253 before the New York City Council
Committee on Immigration provides further evidence of this need, as
representatives from a wide range of organizations representing different
localities within the city as well as different constituents including
immigrants, the homeless, LGBTQ communities, and domestic violence
victims, articulated support for the program.194
Throughout the program’s rollout and implementation, IDNYC program
leaders learned just how great the need for identification was.195 As
previously mentioned, interest in the card far exceeded expectations and
program leaders had to work quickly to expand their enrollment capacity.196
In addition, the first year of the program’s existence shed light on the extent
of the need in additional communities and groups.197 According to Deputy
Director of Policy Sam Solomon from the Mayor’s Office of Immigrant
Affairs, one of the city’s first-year observations was that some disconnected
New York City youths need identification because they live apart from their
families but are too young to get a driver’s license.198 This need is reflected
in the amendments to the rules adopted in early 2016, which include an
expanded definition of “caretaker,” enabling underage residents to more
easily meet the four-point identification requirement.199
Even as the city recognized that the need for identification did not lie solely
within the city’s immigrant population, IDNYC’s marketing materials make
clear that the program also has a purpose tied to undocumented
immigrants.200 For example, one of the stated goals of the program was to
keep the card “stigma-free” so that the card would not immediately be
associated with documentation status.201 In his statements to the public
relating to IDNYC, Mayor de Blasio has also emphasized the importance of
the card for the immigrant community.202
3. City-Specific Adjustments
During the design and implementation phases of the IDNYC program,
adjustments made to the program demonstrate that the city was ideally
situated to remove the barriers identified, as many of them were New York
City-specific.203 According to Solomon, while doing research for the
program, the city discovered that almost half of the adults living in New York
City do not have a New York State driver’s license.204 Recognizing this
helped to explain why the need for an identification card in New York City
was so vast and the kinds of identification materials New York City residents
were likely (or unlikely) to have when applying for a card.205 These distinct
characteristics were also factored into the city’s marketing and outreach
efforts and placement of pop-up centers.206
According to Solomon, size is another difference between New York City
and other cities whose municipal identification-card programs they looked to
as a model.207 For example, New Haven’s identification program is
administered out of one central building, a model that would have been
impossible to imitate in New York City.208 It would not have been
reasonable, Solomon pointed out, to ask someone to come from the Bronx to
New York City’s city hall in downtown Manhattan, and, if the program had
expected such of its applicants, it likely would not have had anywhere near
as many enrollees as it did.209 Ultimately, the city established eleven
permanent enrollment centers and six nonpublic centers across the five
Another challenge for the IDNYC program arose from the vast array of
diverse languages spoken by New York City’s residents.211 Whereas in New
Haven, the population being served by its municipal identification program
was largely Spanish speaking, Solomon pointed out that only providing
application materials in English and Spanish would have excluded a huge
portion of New York City’s residents.212 As proof of this challenge,
IDNYC’s website offers a manual detailing the IDNYC application process
in over thirty languages.213 According to Solomon, even with so many
options, there are times when the IDNYC coordinators need to use language
interpreters to meet the needs of an applicant.214
4. Banks and Document Retention: Challenges to Be Determined
IDNYC has faced challenges since its launch. One of the most
wellpublicized challenges has been the program’s early struggle to get the
cooperation and support of the city’s financial institutions.215 IDNYC made
the decision not to incorporate a debit card into its identification card, as other
programs have, and to focus instead on partnering with banks in the city so
that cardholders could set up bank accounts, a practice which encourages
long-term savings.216 Despite this goal, many of the largest banks and
financial institutions in the city, including Bank of America and J.P. Morgan,
refused to accept the IDNYC card as proof of identification, citing federal
antifraud laws.217 Even after federal regulators formally approved the
IDNYC card as acceptable identification to open a bank account, many banks
continued to refuse, and Mayor de Blasio cannot compel them to accept the
The refusal of major banks to accept the IDNYC card proved functionally
and optically problematic.219 Currently, thirteen banks and credit unions in
New York City accept IDNYC as a primary form of identification to open a
bank account.220 However, misinformation surrounding which banks would
accept the card in the early stages of the card’s implementation caused
confusion and even embarrassment for some IDNYC cardholders who found
themselves turned away from banks when trying to use their IDNYC as
More recently, IDNYC has also faced challenges to its document retention
policy.222 This policy empowers HRA to destroy application documents after
two years if it determines that keeping the documents is no longer necessary
and to reassess and make any changes to the policy that the agency deems
necessary at the two-year mark.223 The policy was built into the program as
a way to ensure security, verify identify, and to provide an opportunity for
review of the necessity of such retention in light of the need to protect the
privacy of applicants.224
Shortly before the end of 2016, when the underlying documents used to
demonstrate identity and eligibility were to be destroyed, two Republican
members of the New York State Assembly, Ron Castorina Jr. and Nicole
Malliotakis, filed a Freedom of Information Law (FOIL) request for all
IDNYC applicant records.225 When their request was denied, they filed suit,
and on April 3, 2017, a Staten Island judge denied the request and refused to
order the city to produce the records.226 Although an appeal of this decision
was recently dismissed, Castorina and Mallitakis have since filed a second
suit.227 Although this case is still pending, lawyers for the city maintain that
the document request is unnecessary and inappropriate under state law, a
statement supported by the New York State Attorney General.228
Beyond these two issues, the program has not faced significant opposition,
interference, or challenges of preemption.229 Following the launch of
IDNYC, one New York State legislator sponsored a bill that would prohibit
municipalities from creating municipal identification cards, but it was never
Despite these challenges, the IDNYC program has managed to
continuously expand the number of cardholders enrolled in the program and
the benefits associated with the card.231 Data from the Mayor’s Office of
Immigrant Affairs and media reports also indicate that the program has been
successful in reaching and enrolling the immigrant community.232
IV. THE CITY TRANSFORMED
The case study analysis of New York City’s IDNYC program reveals that
cities can bestow a form of citizenship—Affirmative City Citizenship—on
their residents. Part IV draws on lessons from New York City’s experiment
to draw broader conclusions about the strengths and limits of Affirmative
City Citizenship as a means for progressive cities to support their
undocumented immigrant residents.
A. Affirmative City Citizenship
Through its IDNYC program, New York City became an actor in the
citizenship space. The problems the city identified associated with a lack of
identification, including an inability to enter public buildings or to interact
easily with law enforcement,233 are not mere inconveniences. Instead, they
directly correlate with many of the key elements of multidimensional
citizenship identified by Bosniak and others, such as the right to participate
in local politics; the confidence to fully engage with city services, cultural
centers, and law enforcement; and the simple ability to feel like a welcome
member of the community.234
By offering an identification card that facilitates access to banks, city
agencies, public buildings, cultural centers, and law enforcement, New York
City opens pathways to civic participation and engagement that can be
blocked for even U.S. citizens. Beyond undocumented immigrants, New
York City found a need for identification among various other groups,
including the city’s homeless, elderly, and LGBTQ youth population.235
Without an identification card, these groups cannot attend a meeting in city
hall or open a bank account.236 The IDNYC program not only removes these
barriers, but it also sends a message to the members of these groups, many of
whom are marginalized from city life for a variety of reasons, that their
participation matters. In doing so, New York City bestows a form of
citizenship on its residents.
This citizenship bestowed onto New Yorkers by the IDNYC program is
“affirmative” because it is not crafted solely with the aim of resisting federal
immigration policy. Instead, Affirmative City Citizenship proactively “adds
on” to the existing rights and privileges of all city residents, regardless of
their legal standing with the federal government.237 In this way, Affirmative
City Citizenship policies are distinct from other proimmigrant local policies
because they do not embrace a policy of noncooperation toward the federal
government. These policies treat undocumented status as just one of many
factors that can act as a barrier to city life, and in doing so, they allow for a
more peaceable coexistence with federal law.
How does this Affirmative City Citizenship stand up against a lawful
immigration status conferred by the federal government? The short answer
is that it does not. Local efforts at supporting undocumented immigrants can
never replace or be a substitute for a lawful status bestowed by the federal
government. Even so, there are reasons to believe that Affirmative City
Citizenship is a powerful tool to support undocumented immigrant city
residents. First, because local governments exercise power over the areas of
governance most immediately related to daily life,238 the impact of city
policies that improve access to these services for undocumented immigrant
residents is likely to be significant. Second, because goals such as building
a relationship of trust with local government and law enforcement are central
to effective local governance,239 cities have leeway to address these issues
while still falling within traditional city powers. Affirmative City Citizenship
234. See supra Part I.B; see also Villazor, supra note 164, at 592–95.
235. See supra Part III.B.2.
236. See id.
237. See, e.g., supra note 200 and accompanying text.
238. See supra Part I.C.1.
239. See supra notes 138–41 and accompanying text.
policies, then, are strong in the face of legal challenges or attempted
interference by state or local actors.
Affirmative City Citizenship policies are not only legally strong but also
justified for two reasons. First, the federal government’s refusal to
comprehensively address the large undocumented immigration population
has created serious challenges for city governments seeking to protect the
public health, welfare, and safety of their constituents.240 Second, accepting
the assertion that rights require local adaptation,241 local governments will
always be critical to ensuring that rights transition from ideals to realities.
Since local governments legislate in the closest proximity to their
constituents,242 cities may have an inherent obligation to enact policies that
promote rights and civic engagement, regardless of federal policies.
B. Limitations of Affirmative City Citizenship
While Affirmative City Citizenship is powerful in its own right, it is not a
substitute for legal citizenship status. As Part II demonstrated,243 many of
the challenges faced by undocumented immigrants in the city space arise out
of a fear that interacting with city institutions and services will result in their
prosecution and deportation. While Affirmative City Citizenship can seek to
overcome this boundary by providing a discreet way for undocumented
immigrants to interact with city institutions, the importance of federal
comprehensive immigration reform and legal pathways to citizenship cannot
The importance of trust with city officials for effective Affirmative City
Citizenship policies also hints that their success among undocumented
immigrants is reliant, in part, on a coexistence with sanctuary city policies.
While nothing in municipal identification-card policies relate to the
enforcement of immigration laws, IDNYC’s goal of trust with local law
enforcement would have been significantly harder to achieve if New York
City did not have a long history of declining to conduct immigration
enforcement and taking actions to protect its immigrant residents.244 In spite
of this history, IDNYC’s evaluation found that “the single greatest reason
people hesitated to get the ID was related to concerns that it was being used
to monitor New Yorkers.”245 Thus, if New York City had not had such a
longstanding proimmigrant stance, it would be even less likely that
undocumented immigrants would feel safe turning over their documents to
apply for an identification card.
Since this Note has focused on a city with both types of policies in place,
the extent of these identification-card programs’ reliance on sanctuary city
240. See supra Part II.B.4.
241. See supra Part I.C.2.
242. See supra Part I.C.2.
243. See supra Part II.B.4.
244. See supra note 102 and accompanying text.
245. Daley et al., supra note 175, at iv. This fear has likely been revived by the current
media attention given to IDNYC’s document retention litigation, regardless of its legal
outcome. See, e.g., Robbins, supra note 222.
policies cannot be conclusively determined. Such a finding, however, simply
leads to the conclusion that cities contemplating adopting municipal
identification-card programs as a means of helping undocumented
immigrants should do so together with other policies that promote a sense of
trust with local government and law enforcement.
Cities today play a central role in the lives of American residents, citizen
and noncitizen alike. As spaces where residents exercise many of the
elements of multidimensional citizenship, the city can promote citizenship
for all residents, regardless of immigration status. New York City’s IDNYC
program aims to do just that. In doing so, it becomes an actor in the
citizenship space. The Affirmative City Citizenship it creates challenges
traditional understandings of legal citizenship and offers a promising way for
local governments to support their undocumented immigrant residents.
From the inception of this Note through the time of its publication, the
environment surrounding U.S. immigration law and policy has changed
drastically. Sanctuary cities now face immediate threats to their federal
funding and the goal of achieving comprehensive immigration reform seems
even less likely than under the Obama administration. This changing
political climate has undoubtedly increased the vulnerability of the
undocumented immigrant population. It follows that cities seeking to support
their undocumented immigrant residents must be more committed now than
A. Sanctuary Cities........................................................................ 355 B . New York City's IDNYC Program ............................................ 357
1. Overview of IDNYC.......................................................... 357
2. IDNYC 's Legislative History and Amendments Since Launch............................................................................... 358
3. City-Specific Adjustments ................................................. 360
4. Banks and Document Retention: Challenges to Be Determined........................................................................ 361 IV. THE CITY TRANSFORMED .................................................................. 363 A . Affirmative City Citizenship...................................................... 363 B . Limitations of Affirmative City Citizenship .............................. 365 CONCLUSION ............................................................................................. 366
31. Id . at 202.
32. See Arizona v. United States , 132 S. Ct . 2492 , 2498 ( 2012 ).
33. See , e.g., Plyer , 457 U.S. at 210.
34. BOSNIAK, supra note 9, at 39.
35. Id . at 13-14.
36. Id . at 14; see also infra Part III .B.
37. See , e.g., JENNIFER GORDON , SUBURBAN SWEATSHOPS : THE FIGHT FOR IMMIGRANT RIGHTS 107 , 275 ( 2005 ) (chronicling how a group of undocumented immigrants in the Long Island suburbs, through effective organizing, “acted in the way citizens act, and changed the law”).
38. See , e.g., Rabia Belt , Contemporary Voting Rights Controversies Through the Lens of Disability , 68 STAN. L. REV. 1491 , 1497 - 98 ( 2016 ) (detailing the different challenges people with disabilities in the United States face when voting, including transportation, polling facility inadequacies, and insensitive poll workers); Dorothy E. Roberts, The Social and Moral Cost of Mass Incarceration in African American Communities, 56 STAN. L. REV. 1271 , 1291 ( 2004 ) (stating that the mass incarceration of African American males in the United States “dramatically constrains the participation of African American communities in the mainstream political economy”); Dawinder S. Sidhu, The Unconstitutionality of Urban Poverty, 62 DEPAUL L . REV. 1 , 2 ( 2012 ) (arguing that the treatment of the urban poor is so mired with discrimination and limited access to education and housing opportunities as to constitute a violation of the U.S. Constitution's Thirteenth Amendment); see also Rose Cuison Villazor,
48. See Diller, supra note 46 , at 1124.
49. New York State' s home rule doctrine, for example, is in Article IX of the State Constitution . N.Y. CONST. art. IX. Section 1 establishes the premise that “[e]ffective local self-government and intergovernmental cooperation are purposes of the people of the state ,” N.Y. CONST. art. IX, § 1, and grants local governments the power to adopt laws “in relation to its property, affairs , or government,” N.Y. CONST. art. IX, § 2(b)(2). Section 2 lists areas in which local governments may legislate, including the “government, protection, order, conduct, safety, health and well-being of persons or property within .” N.Y. CONST. art. IX, § 2 (c)( 10 ).
50. See Diller, supra note 46 , at 1125.
51. Id .
52. See generally Darin M. Dalmat , Note, Bringing Economic Justice Closer to Home: The Legal Viability of Local Minimum Wage Laws Under Home Rule, 39 COLUM . J.L. & SOC. PROBS . 93 ( 2005 ) (surveying home rule doctrines across the United States to assess which support local minimum wage laws).
53. See Diller, supra note 46 , at 1127.
54. ROBERT L. LINEBERRY, EQUALITY AND URBAN POLICY: THE DISTRIBUTION OF MUNICIPAL PUBLIC SERVICES 10 ( 1977 ).
55. Id .
56. See Parlow, supra note 45 , at 373 ( “In this regard, local governments can be viewed as perhaps the most critical level of government in terms of responding-through regulation, goods, or services-to the needs and wants of its constituents .”).
57. As an example of discrimination interfering with the daily life of city residents, in a federal district court certified a class of Black and Latino men in their suit alleging that they had been unlawfully stopped and frisked by New York City police officers without reasonable suspicion . See generally Daniels v. City of New York, 198 F.R.D. 409 (S.D.N .Y. 2001 ). There, the plaintiffs argued that unlawful police practices caused them harm and suffering, including having to live in fear of future stops . Id. at 412.
58. See Gerald E. Frug , City Services, 73 N.Y.U. L. REV. 23 , 35 ( 1998 ) (“Cities are characterized . . . by the wide variety of different kinds of people who live in them: gay and straight, cosmopolitan and streetwise, elderly and college grad, Latino and Anglo, office employee and service worker .”).
59. Id . at 37.
60. Id . at 36.
61. See Diller, supra note 46 , at 1128.
62. See id.
63. See id.
64. Gerald E. Frug , The Central-Local Relationship , 25 STAN. L. & POL'Y REV . 1 , 2 ( 2014 ).
65. See generally Michael C. Dorf & Charles F. Sabel , A Constitution of Democratic Experimentalism, 98 COLUM. L. REV. 267 ( 1998 ).
66. Id . at 450-51.
67. Id . at 316.
68. Id . at 314-15.
69. See , e.g., Belt, supra note 38 , at 1497-98; Roberts, supra note 38, at 1291; Sidhu, supra note 38, at 2.
70. See , e.g., Voting Rights Act, Major Dates in History, ACLU, https://www.aclu.org/timelines/history-voting - rights-act [https://perma.cc/HM2J-PYSK] (last visited Sept . 21 , 2017 ) (describing the history of legislation meant to ensure “the right to vote is not denied on account of race or color”).
71. See Belt, supra note 38 , at 1497-1504.
72. Andrea M. Lee , Don't Save the Date: How More Restrictive State Voter Registration Deadlines Disenfranchise Minority Movers, 43 COLUM . J.L. & SOC. PROBS . 245 , 248 ( 2010 ).
73. See Floyd v. City of New York, 959 F. Supp . 2d 540 , 557 (S.D.N .Y. 2013 ).
74. See Roberts, supra note 38 , at 1293.
75. As discussed in Part I.B, citizenship is a multidimensional phenomenon that encompasses factors beyond legal status. Once that is understood, it is tempting to view undocumented status as merely one of many factors that can hinder citizenship. However, as Bosniak points out, the “hybrid legal status” of being undocumented is distinct from other forms of disadvantage because, unlike race or class, the federal government can lawfully discriminate based on legal status . See BOSNIAK, supra note 9 , at 38. Thus, the relationship between undocumented status and U.S. citizenship is unique .
76. Jeffrey S. Passel & D'Vera Cohn , Unauthorized Immigrant Population Stable for Half a Decade, PEW RES . CTR. (Sept. 21 , 2016 ), http://www.pewresearch.org/fact-tank/ 2016 /09/21/ unauthorized-immigrant -population-stable-for-half-a-decade/ [https://perma.cc/5RU6- ZW24 ]. An estimated 850 ,000 undocumented immigrants currently reside in New York State. See Profile of the Unauthorized Population: New York, MIGRATION POL'Y INST. ( 2015 ), http://www.migrationpolicy.org/data/unauthorized-immigrant-population/state/NY [https://perma.cc/UC5F-DX9Z].
77. See supra Part I.A .
78. See supra Part I.A .
79. See Stephen H. Legomsky , Immigration, Federalism, and the Welfare State, 42 UCLA L. REV. 1453 , 1457 ( 1995 ).
80. See Jens Manuel Krogstad et al., 5 Facts About Illegal Immigration in the U .S., PEW RES. CTR. (Apr. 27 , 2017 ), http://www.pewresearch.org/fact-tank/ 2016 /11/03/5 -facts-aboutillegal-immigration-in-the-u-s/ [https://perma.cc/8AKN-8Q8M].
95. 8 U.S.C. § 1103 (a)( 10 ) ( 2012 ).
96. Immigration Reform and Immigrant Responsibility Act § 133 , 110 Stat. at 3009-563 (codified at 8 U.S.C. § 1357 (g) ( 2012 )).
97. Pub . L. 104 - 208 , § 642 ( c ), 110 Stat. 3009 , 3009 - 707 ( 1996 ) (codified as amended at 8 U .S.C. § 1373 ).
98. Pub . L. No. 104 - 193 , § 400 , 110 Stat. 2105 , 2260 ( 1996 ) (codified as amended in scattered sections of 8 , 26 , 42 U.S.C.).
99. Jennifer Ridgley , Cities of Refuge: Immigration Enforcement, Police, and the Insurgent Genealogies of Citizenship in U.S. Sanctuary Cities, 29 URB . GEOGRAPHY 53 , 61 ( 2008 ).
100. Pub . L. No. 104 - 132 , 110 Stat. 1214 ( 1996 ) (codified as amended in scattered sections of 8 , 18 , 22 , 28 , 42 U.S.C.).
101. 8 U.S.C. § 1252 (c) ( 2012 ).
102. For example, New York City's Executive Order No. 41 , signed by Mayor Michael Bloomberg on September 17 , 2003 , prohibits city agency employees from inquiring about the immigration status of their applicants unless such an inquiry is required by law or to determine eligibility for a particular program. OFFICE OF THE MAYOR OF THE CITY OF N .Y., EXEC. ORDER NO . 41 ( 2003 ). In addition, it prohibits city employees from disclosing confidential information, including immigration status, unless required by law or: In the case of information relating to immigration status, (i) the individual to whom such information pertains is suspected by such officer or employee or such officer's or employee's agency of engaging in illegal activity, other than mere status as an undocumented alien or (ii) the dissemination of such information is necessary to apprehend a person suspected of engaging in illegal activity, other than mere status as an undocumented alien or (iii) such disclosure is necessary in furtherance of an investigation of potential terrorist activity .
104. See Memorandum from Jay S. Bybee, Assistant Attorney Gen ., Office of Legal Counsel, U.S. Dep't of Justice, to John Ashcroft, U.S. Attorney Gen. (Apr. 3 , 2002 ), https://www.aclu.org/files/FilesPDFs/ACF27DA.pdf [https://perma.cc/HG9P-GCKN].
105. INS was the name of the federal agency tasked with immigration law enforcement prior to 2003 when it was dissolved and the majority of its functions were transferred to the three federal agencies in existence today-U.S. Citizenship and Immigration Services , U.S. Immigration and Customs Enforcement , and U.S. Customs and Border Protection-all of which operate under the Department of Homeland Security . See Our History, U.S. CITIZENSHIP & IMMIGR . SERVICES, https://www.uscis.gov/about-us/our-history [https://perma.cc/2BN5- WV68] (last visited Sept . 21 , 2017 ).
106. See Michael J. Wishnie , State and Local Police Enforcement of Immigration Laws , 6 U. PA. J. CONST . L. 1084 , 1086 - 87 ( 2004 ).
107. See id. at 1087.
108. See Armacost, supra note 92 , at 1207-10.
109. See Chacón, supra note 93 , at 602.
110. Developments in the Law, Policing Immigrant Communities , 128 HARV. L. REV. 1771 , 1776 ( 2015 ).
111. Id . at 1776. This training was frequently criticized for being inadequate and ineffective, criticisms that were later corroborated by the federal government itself . See U.S. GOV'T ACCOUNTABILITY OFFICE , GAO- 09 -109, IMMIGRATION ENFORCEMENT : BETTER CONTROL NEEDED OVER PROGRAM AUTHORIZING STATE AND LOCAL ENFORCEMENT OF FEDERAL IMMIGRATION LAWS ( 2009 ).
112. See Delegation of Immigration Authority Section 287 (g) Immigration and Nationality Act , U.S. IMMIGR. & CUSTOMS ENFORCEMENT [hereinafter Delegation of Immigration] , https://www.ice.gov/factsheets/287g [https://perma.cc/EQ92-AAHR] (last visited Sept . 21 , 2017 ).
113. See The 287(g) Program: An Overview , AM. IMMIGR. COUNCIL 2 ( Mar . 2017 ), https://www.americanimmigrationcouncil.org/sites/default/files/rresearc/the_287g_ program_ an_overview_0 .pdf [https://perma.cc/29T4-CSMW].
114. See Delegation of Immigration, supra note 112.
115. See id.
116. See Michelle Waslin, Secure Communities: A Fact Sheet , AM. IMMIGR. COUNCIL ( 2010 ), https://www.americanimmigrationcouncil.org/research/secure-communities-factsheet [https://perma.cc/8R68-5GJS].
117. Id .
118. Id .
119. See Armacost, supra note 92 , at 1210.
120. See Waslin, supra note 116.
121. See Armacost, supra note 92 , at 1209.
122. Under the leadership of former President Barack Obama, the Secure Communities program was suspended and replaced by the Priority Enforcement Program (PEP), which sought to limit the former program's reach by targeting individuals convicted of significant criminal offenses . See Priority Enforcement Program, U.S. IMMIGR. & CUSTOMS ENFORCEMENT , https://www.ice.gov/pep#wcm -survey-target-id [https://perma .cc/GD64- E4DA] (last visited Sept . 21 , 2017 ). PEP was terminated in 2017 . Id.
123. See Secure Communities, U.S. IMMIGR. & CUSTOMS ENFORCEMENT , https://www.ice.gov/secure-communities [https://perma.cc/6PEP-TCT7] (last visited Sept . 21 , 2017 ).
124. See Stephen W. Yale-Loehr & Ted J. Chiappari , Immigration: Cities and States Rush in Where Congress Fears to Tread, 34 CORNELL L.F. 8 , 8 ( 2007 ).
125. Id ; see also Lisa Maria Garza, Number of Immigration Measures Passed by U . S. States Jumps in 2013: Report, REUTERS (Sept. 11 , 2013 ), http://www.reuters.com/article/us-usapolitics - immigrationlaws-idUSBRE98B03J20130912 [https://perma.cc/2LKA-WWGF].
126. See Yale-Loehr & Chiappari, supra note 124, at 8.
127. See Database of Recent Local Ordinances on Immigration, FAIR IMMIGR . REFORM MOVEMENT ( 2007 ), http://www.ailadownloads.org/advo/FIRM-LocalLegislation Database.doc [https://perma.cc/N6KX-JAZ4].
128. See Yale-Loehr & Chiappari, supra note 124, at 10-11.
129. See Jesse Newmark, Legal Aid Affairs: Collaborating with Local Governments on the Side, 21 B.U. PUB. INT . L.J. 195 , 228 ( 2012 ).
130. Keith Aoki et al., (In)visible Cities: Three Local Government Models and Immigration Regulation , 10 OR. REV. INT'L L . 453 , 481 - 82 ( 2008 ).
131. Newmark , supra note 129, at 228-29.
132. Id . at 229. For a discussion of the preemption doctrine's application to city and state immigration policies, see generally Lauren Gilbert, Immigrant Laws, Obstacle Preemption and the Lost Legacy of McCulloch, 33 BERKELEY J . EMP. & LAB . L. 153 ( 2012 ).
133. See generally Orde F. Kittrie , Federalism, Deportation and Crime Victims Afraid to Call the Police, 91 IOWA L. REV. 1449 ( 2006 ) ; Huyen Pham, The Constitutional Right Not to Cooperate? Local Sovereignty and the Federal Immigration Power , 74 U. CIN. L. REV . 1373 ( 2006 ).
134. See , e.g., Armacost, supra note 92 , at 1223-33 ( arguing that the 287(g) and Secure Communities programs incentivize members of law enforcement to stop residents that they think might be undocumented, even if they would not have done so otherwise).
135. See Kittrie, supra note 133 , at 1451-54.
136. Id . at 1451.
137. Id . at 1451-54.
138. Id . Statements from Mayor Bloomberg support this assertion. In a statement following the mayor's signing of Executive Order 41 regarding city services for immigrants, he stated, “we all suffer when an immigrant is afraid to tell the police that she has been the victim of a sexual assault or domestic violence .” Mayor Michael R. Bloomberg , Remarks at Signing of Executive Order 41 (Sept. 17 , 2003 ), http://www1.nyc.gov/office-of-the-mayor/ news/262-03/ mayor-michael-bloomberg-signs-executive- order- 41 - city-services-immigrants [https://perma.cc/69UY-74V4].
139. This argument is frequently used as a justification for sanctuary city policies. For example, when the Houston Police Department enacted its nonenforcement policy, a Houston Police Department representative stated, “[w]ithout the assurances they will not be deported, many illegal immigrants with critical information would not come forward” and “[p]olice depend on the cooperation of immigrant communities to help them solve all sorts of crimes and to maintain public order .” Peggy O'Hare , Houston Police's Policy on Immigrants: Hands Off, HOUS . CHRON. (Mar. 3 , 2003 ), http://www.chron.com/news/houstontexas/article/Houston-police -s-policy-on-immigrants-hands-off-2109308 .php [https://perma.cc/J4WD-KB87].
140. See Kittrie, supra note 133 , at 1454-55.
141. See Pham, supra note 133 , at 1375.
142. Id . at 1400.
143. Id . at 1400 n.126.
144. Id . at 1400.
145. See , e.g., Armacost, supra note 92 , at 1223-33.
146. Id . at 1210.
147. See ACLU , WRITTEN STATEMENT FOR A HEARING ON EXAMINING 287(G): THE ROLE OF STATE AND LOCAL ENFORCEMENT IN IMMIGRATION LAW 6 ( 2009 ), https://www.aclu.org/files/images/asset_upload_file717_ 39062 .pdf [https://perma.cc/35DNX3Z2].
148. Id . at 19-20.
149. See The 287(g) Program: An Overview , supra note 113, at 4-7.
150. HOMELAND SEC. ADVISORY COUNCIL , U.S. DEP'T OF HOMELAND SEC ., TASK FORCE ON SECURE COMMUNITIES FINDINGS AND RECOMMENDATIONS 25 ( 2011 ), https://www.dhs.gov/xlibrary/assets/hsac-task -force-on-secure-communities .pdf [https://perma.cc/U7CG-V7XZ].
151. See id.
152. ICE OFFICE OF THE DIR ., U.S. IMMIGRATION & CUSTOMS ENF'T, ICE RESPONSE TO THE TASK FORCE ON SECURE COMMUNITIES FINDINGS AND RECOMMENDATIONS 18 ( Apr . 7, 2012 ), https://www.dhs.gov/xlibrary/assets/hsac/ice-response -to-task-force-on-securecommunities .pdf [https://perma.cc/WL2T-M8MR].
153. See Armacost, supra note 92 , at 1241.
154. See , e.g., Peter Baker , Trump Supports Plan to Cut Legal Immigration by Half , N.Y. TIMES (Aug. 2 , 2017 ), https://www.nytimes.com/ 2017 /08/02/us/politics/trumpimmigration.html [https://perma.cc/JD6F-D392].
155. See Rose Cuison Villazor , What Is a “Sanctuary”?, 61 SMU L. REV. 133 , 140 ( 2008 ).
156. Id . at 142.
157. See Kittrie, supra note 135 , at 1474.
158. See Newmark, supra note 129 , at 213-14.
159. See , e.g., Liz Robbins , New York's City Council Seeks to Bolster 'Sanctuary City' Status, N.Y. TIMES (Apr. 26, 2017 ), https://www.nytimes.com/ 2017 /04/26/nyregion/newyork-city -council-sanctuary-city-bills .html [https://perma.cc/7PA2-XRY7] (describing New York City's recent efforts to expand protections for undocumented immigrants and describing New York City as one of the first cities to “enact laws limiting cooperation with federal immigration enforcement officials”).
160. See City of New York v. United States , 179 F.3d 29 , 37 ( 2d Cir . 1999 ) (upholding the constitutionality of two federal immigration law statutes despite the city's argument that it
169. Id . at 597-98.
170. See supra note 163 and accompanying text .
171. See Parlow, supra note 45 , at 373.
172. See supra Introduction.
173. See Mayor de Blasio and Speaker Mark-Viverito Announce IDNYC Reaches 1 Million Cardholders , NYC (Mar. 31 , 2017 ) [hereinafter IDNYC Reaches 1 Million] , http://www1.nyc.gov/office-of-the-mayor/news/194-17/mayor-de -blasio-speaker-markviverito-idnyc- reaches- 1 - million-cardholders [https://perma.cc/9SK5- BTD8 ].
174. Id .
175. See TAMARA C. DALEY ET AL., IDNYC: A TOOL OF EMPOWERMENT: A MIXEDMETHODS EVALUATION OF THE NEW YORK MUNICIPAL ID PROGRAM 25 ( 2016 ), https://www1.nyc.gov/assets/idnyc/downloads/pdf/idnyc_report_full.pdf [https://perma.cc/VEB5-H757].
176. See Solomon Interview, supra note 3.
177. See OFFICE OF THE MAYOR OF THE CITY OF N .Y., EXEC. ORDER NO. 6 ( 2014 ).
178. See RULES OF THE CITY OF N.Y ., tit. 68 , § 6 ( 2017 ).
179. See Daley et al., supra note 175, at 6 , 9.
180. How to Apply: Document Calculator, IDNYC, http://www1.nyc.gov/site/idnyc/card/documentation.page [https://perma.cc/V7LG-CBWN] (last visited Sept . 21 , 2017 ).
181. See How to Apply: Application Materials, IDNYC, http://www1.nyc.gov/site/idnyc/ card/application-materials.page [https://perma.cc/2Z98-23MP] (last visited Sept . 21 , 2017 ).
182. Benefits , IDNYC, http://www1.nyc.gov/site/idnyc/benefits/benefits.page [https://perma.cc/7W9X-RXU3] (last visited Sept . 21 , 2017 ).
183. Id .
184. Id .
185. See Daley et al., supra note 175 , at 1.
186. See Solomon Interview, supra note 3.
187. See Jeffrey S. Passel & D'Vera Cohn , 20 Metro Areas Are Home to Six-in-Ten Unauthorized Immigrants in U.S., PEW RES. CTR. (Feb. 9 , 2017 ), http://www.pewresearch.org/ fact-tank/ 2017 /02/09/us-metro - areas - unauthorized-immigrants/ [https://perma.cc/KT58- Y8TS].
188. COMMITTEE REPORT, supra note 6 , at i.
189. Id .
190. Id . at 2.
191. Id .
192. See N.Y.C. POLICE DEP' T , PATROL GUIDE PROCEDURE NO. 208 - 28 , IDENTIFICATION STANDARD FOR DESK APPEARANCE TICKETS ( 2015 ); N.Y.C. POLICE DEP'T, PATROL GUIDE PROCEDURE NO. 208-08, PERSONAL SERVICE OF SUMMONSES RETURNABLE TO TRAFFIC VIOLATIONS BUREAU OF CRIMINAL COURT ( 2013 ).
193. See COMMITTEE REPORT, supra note 6 , at 2 (quoting Christine Schanes, Homeless People Need ID , HUFFINGTON POST (Apr. 3 , 2011 ), http://www.huffingtonpost.com/christineschanes/how-homeless - people-feel-_ b_835216 .html [https://perma.cc/P86V-TKUW]).
194. See , e.g., Hearing on Intro No . 253 to Create a New York City Identity Card Program Before the N .Y.C. Council Comm. on Immigration (N.Y .C. 2014 ) (statements of Diana Reyna, Deputy Brooklyn Borough President and Virginia Goggin , Legal Director of N.Y.C. Gay and Lesbian Anti-Violence Project ), http://www.legistar.council.nyc.gov/View.ashx?M= F&ID= 3096972 &GUID= 39A1E010 -1D63 - 4D34 - BE00-DBB231048F81 [https://perma.cc/2L2KGSV6].
195. See Solomon Interview, supra note 3.
196. Id .
197. Id .
198. Id .
199. See N.Y.C. Human Resources Administration, Notice of Public Hearing and Opportunity to Comment on Proposed Rule (Feb . 4, 2016 ), https://www1.nyc.gov/assets/ hra/downloads/pdf/news/notices/2016/feb/Notice%20of %20Hearing%20and%20Opportunit y%20to%20Comment % 20 - % 20Amendment% 20of % 20IDNYC % 20Rule % 20 - % 20C.pdf [https://perma.cc/WG6B-APAQ].
200. See About IDNYC , IDNYC, http://www1.nyc.gov/site/idnyc/about/about.page [https://perma.cc/V4P6-4ABR] (last visited Sept . 21 , 2017 ) (stating on the second line of the “About IDNYC” section “[i]mmigration status does not matter”).
201. See Daley et al., supra note 175 , at iii.
202. For example, in his forward to IDNYC's independent evaluation, Mayor de Blasio touts the program's success by noting that a quarter of IDNYC cardholders report the card as their only form of U.S. identification and that 77 percent of New York City's immigrants, both documented and undocumented, reported feeling a stronger sense of belonging . See Bill de Blasio, Preface to Daley et al., supra note 175.
203. Solomon Interview, supra note 3.
204. Id .
205. Id .
206. Id .
207. Id .
208. Id .
209. See id.
210. See Daley et al., supra note 175 , at 5.
211. Solomon Interview, supra note 3.
212. Id .
213. See How to Apply: Application Materials, supra note 181.
214. See id.; see also IDNYC Program Language and Disability Access Plan , IDNYC (Jan. 2 , 2015 ), https://www1.nyc.gov/assets/idnyc/downloads/pdf/language-disability-accessplan.pdf [https://perma.cc/PZ8C-96C2].
215. See Michael Corkery & Jessica Silver-Greenberg , Banks Reject New York City IDs, Leaving 'Unbanked' on Sidelines, N.Y. TIMES (Dec. 23, 2015 ), https://www.nytimes.com/ 2015 /12/24/business/dealbook/banks-reject -new-york-city-idsleaving-unbanked-on-sidelines .html?_r=0 [https://perma.cc/5JKF-ZGXB].
216. Solomon Interview, supra note 3.
217. See Mayor de Blasio Wants to “Educate” Banks That Refuse New Identity Card, N.Y. BUS . J. (Dec. 24 , 2015 ), http://www.bizjournals.com/newyork/news/2015/12/24/mayor-deblasio -wants-to-educate-banks-that-refuse .html [https://perma.cc/2PMG-VRP5].
218. See Andrew J. Hawkins , Feds Give Municipal ID Thumbs-Up, But Warn It May Not Be Enough for Some Banks , CRAIN'S (July 28 , 2015 ), http://www.crainsnewyork.com/ article/20150728/BLOGS04/150729865/feds-give -municipal-id-thumbs-up-but-warn-itmay-not-be-enough-for-some-banks [https://perma .cc/9LJM-UK33].
219. See Daley et al., supra note 175 , at iv.
220. See Benefits: Banks and Credit Unions , IDNYC, https://www1.nyc.gov/site/idnyc/benefits/banks-and -credit-unions .page [https://perma.cc/NBC2-DDCD] (last visited Sept . 21 , 2017 ).
221. See , e.g., Daley et al., supra note 175 , at 23.
222. See Liz Robbins, New York City Should Keep ID Data for Now, Judge Rules , N.Y. TIMES (Dec. 21, 2016 ), http://www.nytimes.com/ 2016 /12/21/nyregion/new-york -city-shouldkeep-id-data-for-now-judge-rules .html [https://perma.cc/UE32-RVDT].
223. RULES OF THE CITY OF N.Y ., tit. 68 , § 6 - 11 (b) ( 2017 ). (“On or before December 31 , 2016 , HRA will review data collected in the report described in section 3-115(h) of the Administrative Code and make a determination regarding the continuing need to retain records pursuant to section 3-115(e)(1) of such code in order to effectively administer the IDNYC Card Program and will make any appropriate modifications to the policy for retention of records related to the IDNYC Card Program .”).
224. See Solomon Interview, supra note 3 . The decision to keep documents in the first place was controversial and elicited criticism by groups concerned with privacy . See , e.g., Johanna Miller , Statement of the NYCLU Regarding the New York City Municipal ID Bill , NYCLU, http://www.nyclu.org/content/statement -of-nyclu-regarding-new-york-citymunicipal-id-bill [https://perma .cc/5KD9-TBS5] (last visited Sept . 21 , 2017 ).
225. See In re Ronald Castorina, Jr., No. 80258 /16, slip op. at 6 ( N.Y. Sup . Ct. Apr. 3 , 2017 ).
226. See id. at 19.
227. See Nicholas Rizzi, IDNYC Data Not Shredded Yet as New Lawsuit Keeps Personal Info in Limbo , DNAINFO (May 2 , 2017 ), https://www.dnainfo.com/new-york/20170502/stgeorge/idnyc-document -destroy-manhattan-supreme-court-shred [https://perma .cc/U2VPA245].
228. See Robbins, supra note 222.
229. See Solomon Interview, supra note 3.
230. Bill A03687 , sponsored by New York State Assembly Member Kieran M. Lalor, would “prohibit municipalities from issuing government identification cards to illegal aliens .” N.Y. State Assemb., 2015 - 2016 -A03687, Reg. Sess. (N.Y. 2015 ). This bill was sent to Committee in January 2015 and on January 27, 2015 , it was “referred to local governments.” See A03687 Summary, N.Y. ST. ASSEMBLY , http://nyassembly.gov/leg/?default_fld= & leg_video=&bn=A03687&term=2015 &Summary= Y & Actions = Y &Committee%26nbspVo tes=Y&Floor%26nbspVotes= Y & Memo = Y & Text =Y [https://perma.cc/HLU9-34KU] (last visited Sept . 21 , 2017 ).
231. See IDNYC Reaches 1 Million, supra note 173.
232. See , e.g., Samar Khurshid , New Data Indicates IDNYC Popularity Among Immigrants , GOTHAMGAZETTE (Jan. 14 , 2016 ), http://www.gothamgazette.com/index.php/government/ 6085-new -data-indicates-idnyc-popularity-among-immigrants [https://perma .cc/SV7S-5846].
233. See supra Part III.B.2.