Legal Debate Prompted By Arizona Ban On Deferred Action Licenses
August 17, 2012

Photo by Nick Blumberg
Matt Benson, Arizona Gov. Jan Brewer's spokesman, addresses the crowd of undocumented immigrants who protested the executive order Thursday.

PHOENIX -- Now that young immigrants who were brought to this country illegally as children can apply for temporary work permits and deportation relief, questions are arising over what benefits they can receive.

Tens of thousands of undocumented immigrants in Arizona between the ages of 16 and 31 in Arizona alone could be eligible for two-year work permits under the program, known as Deferred Action for Childhood Arrivals.

The federal government began accepting applications on Aug. 15. The same day, Arizona Governor Jan Brewer issued an executive order barring those who qualify for the federal program from obtaining state driver’s licenses and benefits.

But some attorneys and advocates are crying foul.

“This executive order is really, completely out of line,” said Alessandra Soler, executive director of the American Civil Liberties Union of Arizona. “We don’t think she had any foundation in state or federal laws to issue this executive order.”

Meanwhile, the Governor’s office insists the order doesn’t say anything new, and just echoes state law.

“Arizona law is very clear that you have to have lawful presence to receive an Arizona's driver's license,” said Brewer’s press secretary, Matt Benson. “All the governor has done is reiterate that that remains the law and having a special work permit under this deferred action program does not suddenly mean you get a driver's license.”

But immigration attorneys argue that immigrants approved for deferred action will be lawfully present in the country.

“Someone who is granted deferred action is actually lawfully present in the United States,” said Regina Jefferies, the head of the Arizona Chapter of the American Immigration Lawyers Association. “They are here with the authorization of the Attorney General and for that reason they are able to get an employment authorization document and a Social Security Number.”

Under current state law, Arizona residents can present a work permit, a Social Security Number and one other form of ID to receive a state driver’s license.

But the governor’s office asserts that there is a difference between the young people who would qualify for the new Obama Administration program, and immigrants who have received federal work permits in the past.

“Up until now, the federal government would only provide work permits to individuals who had authorized status,” Benson said. “But that is no longer the case. The federal government is now providing work permits to individuals the Department of Homeland Security itself says do not have lawful status.”

Jefferies counters that there is an important distinction between “lawful status” and “lawful presence,” and this is not the first time that immigrants without lawful status have received permission to stay in the country and work. Furthermore, she says deferred action is not a new program.

“Deferred action has been around for a long time,” Jefferies said. “Just deferred action for this particular group of individuals is new, and individuals in that situation have been able to get driver's licenses in the past.”

Jefferies said those immigrants include certain asylum seekers waiting for their case to be determined and domestic violence victims seeking immigration relief.

The Arizona Department of Transportation did not reply to a request for comment.

While the U.S. Citizenship and Immigration Service guidelines make clear that immigrants who are approved under the new initiative will not have lawful status, lawful presence is all that is required for a driver’s license under the state statute. The federal agencies’ guidelines also specify that deferred action recipients will not accrue “unlawful presence.”

Fronteras Desk has asked the Department of Homeland Security to clarify whether deferred action recipients will have “lawful presence,” and are awaiting a response.

Jefferies said the state is opening itself up to litigation because the executive order conflicts with state law and the federal REAL ID Act, which outlines requirements for state driver’s licenses.

Soler said the ACLU of Arizona is "continuing to assess our legal claims" on this issue. She added that she believes the motivation of the order is politics.

“This is basically Brewer just singling out these DREAMers and these young people in an effort to wage a fight with the federal government for political gain,” Soler said.

Because federal work permits are labeled with the category of immigration relief, it may be possible for Arizona Motor Vehicles Divisons to distinguish between the driver's license applications of immigrants who receive work permits under Deferred Action for Childhood Arrivals, and those with different immigration claims.

Other states, including California, have indicated that young people who qualify for the new immigration initiative will be eligible for temporary driver’s licenses.

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