By Daniel Gonzalez
November 28, 2012
A group of civil-liberties and immigrant-rights organizations is expected to file a lawsuit today challenging Gov. Jan Brewer’s executive order denying driver’s licenses to young undocumented immigrants approved for federal work permits under President Barack Obama’s deferred-action program.
The lawsuit would mark the first legal challenge against a state for denying driver’s licenses to young undocumented immigrants authorized to live and work temporarily in the U.S. under the program.
The lawsuit could affect other states that have also denied driver’s licenses to non-citizens protected from deportation under the program, known as Deferred Action for Childhood Arrivals, or DACA.
The lawsuit is expected to be filed by the Arizona and national chapters of the American Civil Liberties Union, the Mexican American Legal Defense and Educational Fund, and the National Immigration Law Center.
The same groups are involved in an ongoing civil-rights lawsuit challenging Arizona’s immigration-enforcement law, Senate Bill 1070.
The organizations have scheduled a news conference for this morning on the Tempe campus of Arizona State University to announce a “major lawsuit against the state of Arizona.” The groups have declined to discuss the lawsuit.
But several immigration lawyers said the ACLU and other groups have been working on a legal challenge since Brewer issued her executive order on Aug. 15, the day the federal government began accepting applications for the deferred-action-from-deportation program.
“This lawsuit and the state having to defend that lawsuit has been long expected,” said Gerald Burns, a Chandler immigration lawyer who represents several young undocumented immigrants who have applied for deferred-action under the program.
The deferred-action program, announced by Obama on June 15, allows young undocumented immigrants brought to the U.S. as children to apply for a two-year reprieve from deportation. Those approved for the program by meeting criteria, including graduating from high school or obtaining a GED diploma, and passing a criminal-background check, also receive a federal employment-authorization document, or work permit.
Immigrant advocates say deferred-action recipients need driver’s licenses to travel to school and jobs.
As many as 1.7 million undocumented immigrants under 31 brought to the U.S. before they were 16 could be eligible for the program, including 80,000 in Arizona.
A total of 308,935 undocumented immigrants had applied for deferred-action nationally, including 11,074 in Arizona, as of Nov. 15, according to the Department of Homeland Security.
A total of 53,273 nationally have been approved, according to the DHS.
Obama’s program was seen as an election-year move aimed at winning back the support of Latino voters disappointed with his failure to get immigration reforms, including a legalization program for the nation’s 11 million undocumented immigrants, passed during his first term in office as promised. The program is credited with helping Obama win re-election with more than 70 percent of the Latino vote.
Brewer, meanwhile, has taken a hard line on immigration. Her order was seen as a way of rebuffing Obama’s deferred-action program as political payback after he asked the Justice Department to file a lawsuit challenging SB 1070, which Brewer said was needed because the federal government had failed to stop illegal immigration.
“They changed the rules in the middle of the game when it came to driver’s licenses and they did it as a political reaction to DACA,” Burns said.
In her executive order, Brewer directed all state agencies to take steps to ensure that any undocumented immigrants granted deferred-action would not receive any public benefits from the state, including driver’s licenses. As a result, the Arizona Department of Transportation’s Motor Vehicle Division determined that the agency would not give driver’s licenses to anyone with a federal employment-authorization document obtained through Obama’s deferred-action program.
State law requires anyone applying for a driver’s license to prove their presence in the United States is authorized under federal law. Brewer has argued that the employment-authorization documents issued to deferred-action recipients don’t meet state law because DHS officials have said the documents don’t give undocumented immigrants any sort of legal status, just the ability to live and work in the U.S. temporarily without the threat of being deported.
But Brewer’s order contradicts the state’s long-standing policy of granting driver’s licenses to non-citizens, including illegal immigrants, with the same employment-authorization documents granted to deferred-action recipients, said Regina Jefferies, a Phoenix immigration lawyer and chair of the Arizona chapter of the American Civil Liberties Union.
For years, the federal government has granted work permits to non-citizens for a variety of reasons, including to illegal immigrants with deportation-cancellation cases pending in Immigration Court.
Last week, The Arizona Republic and its broadcast partner 12 News reported that over the past eight years, Arizona has issued licenses and state ID cards nearly 40,000 times to non-citizens who had federal employment-authorization documents, according to data obtained through a public-records request from the MVD. The data also showed that since Brewer’s order, the state has issued more than 1,000 driver’s licenses or ID cards to non-citizens with work permits while denying licenses to those with work permits issued through Obama’s program.
Burns, the Chandler lawyer, said it does not make sense politically to continue to deny driver’s licenses to deferred-action recipients in light of a growing push by Republicans in Congress to legalize undocumented immigrants to attract Latino voters after Republican presidential nominee Mitt Romney’s defeat in November.
On Tuesday, retiring Sens. Jon Kyl, R-Ariz., and Kay Bailey Hutchison, R-Texas, introduced legislation that would let young undocumented immigrants earn permanent legal status, but not citizenship, if they graduate from college or serve four years in the military.
“Does it really make sense for the state of Arizona to fight and expend resources on this?” Burns said. “The rest of the U.S. is moving towards doing something about comprehensive immigration reform.”
Muzaffar Chishti, of the Migration Policy Institute’s office at New York University School of Law, said four states in addition to Arizona have taken action to deny driver’s licenses to deferred-action recipients: Nebraska, Texas, Michigan and Mississippi.
None has faced a legal challenge.
Four other states, California, Massachusetts, Georgia and Wisconsin, specifically allow deferred-action recipients to get driver’s licenses.