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The New York Primaries are Over. What Does it Mean for Immigration Policy?

Will Cuomo's leftward shift hold? Probably not

For New York State’s immigrants — over one-fifth of the population — Gov. Andrew Cuomo’s easy victory over progressive challenger Cynthia Nixon leaves two possible paths forward, one more likely than the other.

The first is that the spirited primary race and the appetite for unabashed leftism in the activist base of the Democratic party have driven Cuomo leftward on immigration issues. There have been hints to this effect, such as his signing of an executive order to prohibit cooperation between state agencies and the U.S. Immigration and Customs Enforcement agency last year. But these have been largely decorative efforts, achieving headlines without the tough slog of substantive and lasting shifts in state policy, like providing driver’s licenses to the undocumented or expanding access to healthcare.

Cuomo has made the right noises for the state’s immigrant advocates, but if you think that means he will sacrifice any political capital to move controversial policies forward, the Working Families Party has a bridge to sell you. No, the second and more likely option — especially in light of the victories of his lieutenant governor, Kathy Hochul, and New York City Public Advocate Tish James for Democratic nominee for attorney general — is that Cuomo will recede into his favored stance of going for the easy headlines while allowing himself ample wiggle room with moderates. Expect this to be doubly true now that the moderates he’ll be courting aren’t just the Onondaga County variety but also those in Iowa and New Hampshire.

The one fact of the night that might shift the likely outcome is the bloodbath that was the primaries involving former members of the Independent Democratic Conference, the breakaway group of Democratic senators who were in a power-sharing arrangement with the Republicans in the State Senate. Six of the eight former members lost their primaries to progressive challengers; as we have pointed out before, many immigration advocates had actually considered the IDC and its members allies.

Sen. José Peralta of Queens, who introduced the state DREAM Act, which would expand financial assistance for undocumented students, was among those defeated. That said, their challengers will likely be no less committed to that act and other pro-immigration legislation, and less inclined than the IDC to play ball with Cuomo and the Senate Republicans.

From a national standpoint, the New York attorney general’s office has been one of the more persistent thorns in the side of the Stephen Miller-Gene Hamilton-John Kelly trifecta of anti-immigrant White House officials. The governor can set local policy and has a bully pulpit, but the attorney general has a small army of attorneys and subpoena power, and Barbara Underwood — as well as her disgraced predecessor Eric Schneiderman — has not been afraid to use it.

The office is embroiled in complex litigation against the federal administration on issues including the addition of the citizenship question to the 2020 Census, the implementation of the so-called travel ban, and the government’s attempts to end the DACA program. There are many more potential actions on the horizon.

Victor Tish James’ campaign website lists a few specific ones, including bringing legal action to keep ICE from making arrests in courts. Other states have passed measures limiting ICE’s access to courts, but there doesn’t appear to have been a lawsuit seeking to stop the practice; New York’s chief administrative judge has determined that she does not have the legal authority to prevent these arrests.

Second, investigate the private companies providing the “infrastructure” for the administration’s policies, which presumably refers to private detention companies. Three, file litigation over people being denied Special Immigrant Juvenile status after turning 18. Four, file legal action to stop potential “public charge” rules from going into effect, and de facto preventing immigrants from using all sorts of lawful public benefits.

These are all pretty aggressive measures, particularly the idea of going after the companies that ultimately form the backbone of immigration enforcement. This is an avenue that hasn’t really been explored by any state attorney general so far and could open up new fronts on the daily battle to roll back the ability of the Trump White House and federal machinery to carry out their ultimate goal of limiting immigration to a trickle.

On the contentious question of abolishing ICE  — a new litmus test for progressive Democratic candidates around the country — James has wavered, going back and forth on whether she would support eliminating the agency outright or merely reforming it, but she does seem genuinely interested in flexing the office’s significant muscles in going after the Trump administration’s immigration policies.

The decisions made on these issues will affect not only the millions of New York immigrants, but the scope and policy of the nation’s immigration system itself.

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