Justice Dept. Orders States to Widen Immigrant Reporting Rules

The Justice Department has ordered states to expand how they report undocumented immigrants to the federal government, according to a legal opinion issued Tuesday that overturns a policy in place for nearly 30 years.

Under the new opinion, issued by the department's Office of Legal Counsel, any state that accepts federal funding through low-income assistance programs — including Temporary Assistance for Needy Families (TANF) or Supplemental Security Income (SSI) — must now report undocumented immigrants across its entire state government, not just through the specific office administering the program.

TANF and SSI are among the country's largest programs helping low-income families and elderly and disabled residents.

The opinion withdraws a 1998 interpretation from the Clinton administration that had limited the reporting requirement to the state agency directly responsible for the federal program.

Deputy Assistant Attorney General Joshua Craddock, who wrote the new opinion, said the earlier interpretation was legally flawed. "We are forced to conclude that our prior opinion erred in its analysis and result," he wrote. He also rejected the argument that decades of congressional inaction implied endorsement of the narrower reading, writing that inaction "does not alter the plain meaning of the statute."

Assistant Attorney General T. Elliot Gaiser defended the change in a statement. "When a state chooses to participate in TANF, it accepts the obligation to report illegal aliens in the United States," he said. "Tax dollars intended to help vulnerable Americans should not perversely encourage illegal entry into the United States, but rather should reinforce our laws and our borders."

The new policy will not apply retroactively. Craddock wrote that it "cannot retroactively alter agreements" made under the prior interpretation, since the parties to those agreements "had different understandings" of the reporting obligations. States that object to the new requirement remain free to withdraw from the programs, he said.

The opinion also lowers the bar for when a state can be said to "know" someone is undocumented. A 2000 federal regulation had required a formal legal finding confirmed by immigration authorities. Craddock said that standard was too high, writing in a footnote that an agency cannot avoid its obligation "by deliberately refusing to consider readily available information or by insisting on a formal adjudication that the statute nowhere requires."