Special Subcommittees on Undocumented Alien Students in the Commonwealth
October 7, 2003
Richmond
The third and final
meeting of the House and Senate Special Subcommittees on Undocumented
Alien Students in the Commonwealth opened with an opportunity for speakers
who registered at the previous meeting to present their views.
A representative
of Hispanic Outreach Leadership Action (HOLA) spoke about her experience
in working with undocumented children in Head Start and other programs.
She noted that many students are brought here when they are quite young
and do not know any other home or that they are not legal residents. These
students are bright and hard working. Many of the students strive to achieve
in public school, with college as a goal. They are often disappointed
to discover that they are not able to afford the costs of higher education
because foreign students are charged out-of-state tuition. Pointing out
that jails, prisons and welfare are expensive for society, she stated
that undocumented students need the chance to take advantage of the American
dream and to become educated, productive citizens.
The special subcommittees
were reminded that existing federal law (8 U.S.C. § 1623) states
that
. . . an alien
who is not lawfully present in the United States shall not be eligible
on the basis of residence within a State (or political subdivision)
for any post secondary education benefit unless a citizen or national
of the United States is eligible for such a benefit (in no less an
amount, duration, and scope) without regard to whether the citizen
or national is such a resident.
In Virginia, this
language is interpreted to mean that if undocumented alien students are
provided in-state tuition, then all out-of-state students must be accorded
the same benefit under the same circumstances. Further, under Virginia
law, in-state tuition eligibility requires that the applicant be a Virginia
resident who can legally formulate domiciliary intent (i.e., “the
present intent to remain indefinitely”)—a state-of-mind requirement
that is impossible for illegal aliens to satisfy since they have no legal
right to remain indefinitely.
Federal Responses
Following a review
of the two previous meetings, the special subcommittees received the responses
to the questions that were submitted to the Bureau of Immigration and
Customs Enforcement (BICE) within the Department of Homeland Security
through White House staff. Two members of the House Special Subcommittee
submitted questions.
Delegate Thelma Drake
asked:
We know that the federal immigration agency requires detailed scrutiny
for applicants for student visas. What kind of scrutiny (if any) does
BICE have in place for undocumented alien students?
The response indicated
that “the scrutiny for undocumented alien students is the same as
for all undocumented aliens” and that an interior enforcement strategy
has been developed that “will ensure that enforcement activities
are carried out on a consistent basis nationwide.”
Delegate Robert Tata
asked several questions:
How many individuals in Virginia are currently known to be applying
for legal status? How many young people of college age would be among
this number? Do we know or have estimates of how many undocumented alien
children are residing in Virginia?
The responses noted
that:
- 25,441 individuals
in Virginia applied for legal status in FY 02.
- 26,876 individuals
in Virginia applied for legal status in FY 01.
- 20,087 applied
for legal status in FY 00.
- We do not know
how many young people of college age would be among these numbers.
- We do not know
or have estimates of how many undocumented alien children are residing
in Virginia.
Recommendation/Proposals
The special subcommittees
then discussed recommendations or proposals to be provided to the General
Assembly. A draft letter to the Virginia Congressional delegation was
proposed, which stimulated considerable discussion.
Congress
The members concluded
that the Congressional delegation letter should contain detail concerning
the legislative history of the issue in Virginia; the content of the various
legislative proposals that were considered in the 2003 Session; the fact
that other states have statutes that relate to in-state tuition for undocumented
students; and a description of Virginia’s factual situation.
Specifically, Virginia’s
factual situation is that the estimated 103,000 illegal alien population
residing in the state includes a large percentage of school age children;
that Virginia has an obligation to provide K-12 education to these children
pursuant to a Supreme Court decision; that No Child Left Behind requires
that the Commonwealth improve achievement among these students; and that
the General Assembly of Virginia does not have the tools to make decisions
on the issues associated with this population.
The special subcommittees
also determined that the Congressional letter should recognize that this
issue stems from an immigration problem, which is solely within Congressional
jurisdiction. The letter should acknowledge that Congress is currently
considering legislation relating to this issue and should exhort Congress
to allow states to make their own decisions about the eligibility for
state higher education benefits.
Some of the members
believe the issue of in-state tuition for undocumented alien students
to be a critical economic concern for all Virginia communities, whereas
others noted that, while the economic issues prevail, the word “illegal”
raises many emotions in citizens, particularly vis-à-vis employment
opportunities and access to higher education. Several individuals commented
that the students are trying to live by the rules as they know the rules
to be. Conversely, it was noted that the United States is a nation ruled
by law and that federal law dictates in this situation.
Board of Education
The special subcommittee
also decided to draft a letter to the Board of Education concerning the
feasibility of developing and making available materials to school divisions
for students to take home that address immigration, legalization of illegal
status, and U.S. citizenship and its benefits. The distribution of the
materials would be discretionary for the various school boards and the
Board of Education would recommend the appropriate calendar, class, and
vehicle for dissemination of this information.
State Authority
The special subcommittees
did not reach a consensus on how Virginia’s issues should be handled;
however, the members did agree that, whether they like it or not, the
present federal law controls and that the federal system needs to be restructured.
Although the special subcommittee did not make recommendations for federal
legislation, they stated strongly that all states, especially states such
as Virginia with large populations of undocumented alien students, must
have more authority to make decisions in this area and more help from
the federal government to resolve the education and other public service
issues associated with illegal immigration.
Chairmen:
The Hon. William
C. Mims
The Hon. Robert
Tata
For information,
contact:
Kathleen G. Harris
Norma E. Szakal
Division of Legislative Services
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