Every Texas state agency must report illegal aliens it knows are unlawfully present in the United States to the Department of Homeland Security under a new Justice Department legal opinion that reverses a 28-year-old federal interpretation of welfare law.
The Office of Legal Counsel issued the 19-page opinion Tuesday, and DOJ announced it Wednesday. It interprets Section 404 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996.
Texas participates in the Temporary Assistance for Needy Families program. Although the Texas Health and Human Services Commission administers TANF in the state, OLC concluded that participation binds the entire state government, including every component agency, to the law’s reporting requirement.
Duty reaches beyond welfare agencies
A 1998 Clinton administration opinion limited the duty to agencies that administered TANF or Supplemental Security Income. The new opinion withdrew that guidance and said Congress used “State” to mean the sovereign entity and all its component agencies.
“When a state chooses to participate in TANF, it accepts the obligation to report illegal aliens in the United States,” Assistant Attorney General T. Elliot Gaiser said in the DOJ release.
OLC provides controlling advice to federal executive agencies, but its opinion does not constitute a court ruling or enact a new statute. DOJ said federal agencies may now revise TANF and SSI grant agreements and compliance procedures to reflect its interpretation.
What qualifies as knowledge
The opinion said a 2000 interagency notice set the knowledge threshold higher than the statute requires by generally demanding a formal, reviewable determination supported by immigration authorities.
OLC said knowledge may exist when DHS notifies a state, an individual admits entering unlawfully and lacks a basis for lawful presence, immigration records show that status expired or ended, or documents establish unlawful status on their face. It also said willful blindness may support actual knowledge.
Nothing in the opinion directs state employees to investigate every person’s immigration status. The duty applies to individuals an agency knows are unlawfully present. Lawfully present H-1B workers, foreign students and other valid visa holders fall outside its scope.
Federal funding could be at risk
Federal law requires TANF reporting at least four times annually and upon DHS request. Deputy Assistant Attorney General Joshua Craddock said noncompliance may bring “serious consequences, including loss of program funding.” Federal TANF grants exceed $16.4 billion annually nationwide.
The opinion applies prospectively, preventing federal agencies from penalizing states retroactively for following the 1998 interpretation. It does not identify which Texas office will coordinate statewide compliance or explain whether Gov. Greg Abbott will issue implementation guidance.
Provided by Dallas Express
