HELENA (AP) — An advocacy group told a judge Thursday that a new voter-approved law unconstitutionally requires state agencies to determine who is an illegal immigrant and turn them over to federal authorities.
The plaintiffs led by the Montana Immigrant Justice Alliance asked District Judge Jeffrey Sherlock to block the law, which requires proof of citizenship or legal standing from any applicant for state services, such as unemployment benefits and assistance for crime victims.
The law, which was approved by nearly 80 percent of voters in November, took effect Jan. 1, but most state agencies have not started applying it. There have been no instances of anybody being denied services or deported as a result of it.
Still, plaintiffs' attorney Brian Miller said enforcement can happen at any time without due process or any way to appeal, which creates the need for Sherlock to block the law until the constitutional challenge is decided.
"Nobody knows when they are going to be mugged. Nobody knows when they are going to be laid off," Miller said.
Montana Solicitor General Lawrence Van Dyke said the law should not be blocked because there is no evidence anybody has been harmed by it.
Blocking the law would actually do harm because state agencies would be prevented from limiting services and benefits only to those who are eligible to receive them, he said.
The lawsuit only challenges the requirement that agencies ask applicants for proof of eligibility, not the state's rights to withhold benefits from illegal immigrants, he said.
"It's OK to set criteria, but it's not OK to require proof they meet that?" Van Dyke said.
Sherlock did not make an immediate decision on the request for a preliminary injunction.
The Republican state lawmakers who put the measure on the ballot claim illegal immigrants are living on the taxpayers' dime by obtaining food stamps, unemployment benefits, disability benefits, state licenses and aid for university students.
The new law requires proof of legal standing for any applicant for state services, employment with a state agency, issuance of a state license or permit, unemployment or disability benefits, enrollment as a student or student aid.
The state Board of Regents says the law does not apply to the university system because the state Constitution gives the board sole authority over the system.
Miller presented two witnesses who said the law would affect them. Andrea Carlson, a United Kingdom-born resident of Miles City, said a judge recently ruled that she is a citizen because her father was a citizen and served in the military, but she has yet to get documentation beyond that order.
She is concerned that won't be enough if she finds herself in need of a state service, such as a police response to a crime.
"I wouldn't have any recourse at all if I were mugged in the street," she said.
Alisha Blair, a Canadian-born Missoula resident, said she is contesting denial of a certificate of citizenship and is concerned about the possible consequences of not having documentation.
Blair said she was accepted into the University of Montana in 2009 but did not attend because she was denied financial aid because of her citizenship status.
Van Dyke said the two women have not been affected by the law, and it was unlikely they would be, given their particular circumstances.
The state attorney said not all agencies will necessary conduct investigations into applicants for state services. The agencies are primarily required to ask for proof of citizenship or legal standing, he said. The agency then has the option of conducting a further inquiry to determine eligibility.
If an agency does conduct an inquiry and finds evidence that a person is an illegal immigrant, the agency must then turn over that name to federal immigration officials, he said.