Immigration lawyer says lawsuit isn't politics

2010-02-22T01:00:00Z Immigration lawyer says lawsuit isn't politicsBY DON WALTON / Lincoln Journal Star JournalStar.com
February 22, 2010 1:00 am  • 

Kris Kobach says he was impelled by respect for "the rule of law" when he stepped across the border from Kansas to file an immigrant tuition lawsuit in Nebraska.

The lawsuit challenging Nebraska's law granting resident college tuition rates to resident children of illegal immigrants is not politically motivated, Kobach says.

Not connected to his 2010 candidacy for secretary of state in Kansas.

"It's not part of any campaign," Kobach says. "It is who I am."

Some critics have suggested that Kobach has been riding the volatile issue of illegal immigration for political gain.

Former state Sen. DiAnna Schimek of Lincoln, chief sponsor of the 2006 Nebraska law, says she won't make that charge.

"But I do think it's very strange that he's going around to different states filing these lawsuits," she says.

"That does tend to raise suspicions about his motives."

Kobach, who was chief adviser on immigration law and border security to former U.S. Attorney General John Ashcroft in 2001-2003, lost a bid for a Kansas seat in the U.S. House of Representatives in 2004.

In 2007-2009, he was chairman of the Kansas Republican Party.

"The rule of law needs to be enforced everywhere in the United States," Kobach says in a telephone interview.

"It's very important that states comply with federal law."

The Nebraska law is a clear violation of federal statutes, Kobach maintains.

"Part of the task of unraveling the knot of illegal immigration is making sure states follow federal law," he says.

Last month, Kobach filed suit in Fairbury challenging the Nebraska law enacted over Gov. Dave Heineman's veto.

State Sen. Charlie Janssen of Fremont has introduced legislation this year to repeal the statute. Fourteen senators joined him as co-sponsors.

Kobach, who came to Lincoln to testify in favor of Janssen's bill, filed his suit in Jefferson County Court.

Four of the six Nebraska taxpayer plaintiffs are Kobach's relatives.

His lawsuit argues that the Nebraska law violates federal law barring a state from providing "any postsecondary education benefit" to illegal immigrants that is not also available to U.S. citizens.

Schimek says supporters "don't believe the in-state tuition provision is a benefit because these students do not receive any payments from the state."

In any event, the same resident tuition fee is available to U.S. citizens who move to Nebraska, graduate from a Nebraska high school and live here at least three years, Schimek says.

In addition to those requirements in the immigrant resident tuition law, the statute requires illegal immigrant students to sign an affidavit pledging to pursue legal status.

The law is "very defensible," Schimek says. "We believe it is legal."

Fewer than 50 immigrant students currently receive resident tuition benefits in Nebraska colleges.

Kobach says the Nebraska law matches a California law that was thrown out by the California Court of Appeals.

"The Nebraska statute is a virtual copy of the California law," he says.

"The California case is a very important warning to the Nebraska Legislature."

Kobach argued the California case, which now is pending before the California Supreme Court.

Earlier, Kobach lost a similar case in Kansas.

But, he says, that argument "never got to the merits" because the case was thrown out by a federal court ruling that the student plaintiffs did not have standing in the court.

Kobach, a professor at the University of Missouri-Kansas City School of Law, has been an active political figure in Kansas.

Federal and state election officials recently have been probing record-keeping deficiencies at the Kansas Republican Party during one year of Kobach's chairmanship, but the audits have not resulted in any allegations of mishandling of funds.

"We were not playing according to the rules when we should have," party treasurer Steve Fitzgerald told a GOP state committee meeting in Topeka last month, according to the Lawrence Journal-World.

The New York Times has described Kobach as "a conservative law professor (who) is on a dogged campaign to fight illegal immigration at the local level."

This isn't his first foray into Nebraska.

Last year, Kobach represented Fremont citizens seeking a ban on renting to, or hiring, illegal immigrants within the city limits.

"I litigate in both Kansas and Nebraska," he says.

"Reasonable people can disagree about immigration law," Kobach suggests.

"But the Nebraska law is an incentive for illegal immigrants to remain unlawfully in the state.

"It's a direct subsidy for breaking federal law."

Reach Don Walton at 473-7248 or at dwalton@journalstar.com.

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