Madison Alder

Wednesday, April 6, 2016

Advocates hail ruling affirming DREAMers’ right to driver’s licenses

WASHINGTON – Immigration advocates hailed a federal appeals court ruling that reaffirmed other courts’ findings that Arizona cannot deny driver’s licenses to illegal immigrants who qualify for deferred deportation.

A panel of the 9th U.S. Circuit Court of Appeals on Tuesday upheld a lower court’s injunction of then-Gov. Jan Brewer’s 2012 order that state agencies bar such immigrants from receiving any “taxpayer-funded benefits and state identification, including a driver’s license.”

The court said the order intruded on federal jurisdiction by categorizing those immigrants as “unlawfully present” when the federal government, under the Deferred Action for Childhood Arrivals program started in 2012, did not consider them so.

The court also said the Brewer order likely violated the Constitution’s Equal Protection Clause by denying licenses to DACA immigrants while granting them to other immigrants in much the same situation – but not in DACA.

“This continues the drumbeat in Arizona that the governor and legislature continue to pass regressive policies attacking the Latino community and the courts continue to strike them down,” Victor Viramontes, senior national counsel for the Mexican American Legal Defense Educational Fund. His was one of the organizations representing the Arizona DREAM Act Coalition, which brought the suit against Brewer.

Nicholas Espiritu, a staff attorney at National Immigration Law Center, which also took part in the case, said the decision was “a long time coming.” He said he hopes this is the end of the fight.

“The Supreme Court already turned them away,” Viramontes said referring to a state appeal that was denied last year.

Request for comment on next possible steps for the state were not immediately returned Wednesday from the offices of Gov. Doug Ducey or Attorney General Mark Brnovich.

Brewer’s order – “Re-Affirming Intent of Arizona Law in Response to the Federal Government’s Deferred Action Program” – was issued in August 2012 as a direct response to DACA, which was unveiled in June of that year.

Under DACA, anyone brought to this country illegally as a child could apply for a two-year deferral of deportation if they met specific criteria on age, length of residence, education status, lack of criminal history and more. Those who were approved could get a federally issued employment authorization document – EAD – which allowed to work.

Before DACA, those EADs were considered “proof satisfactory” by the Arizona Department of Motor Vehicles for people seeking a license. But Brewer’s order stopped that, and ADOT ruled that license applicants would have to provide other proof that they were in the country legally.

Other immigrants could still get a license with an EAD – although ADOT later tweaked that policy so that some non-DACA immigrants were also refused a license.

The DREAM Act Coalition sued in November 2012, claiming that the law violated the Constitution’s Equal Protection Clause and Supremacy Clause. After bouncing between levels of the courts on various claims, the district court on Jan. 22, 2015, ruled for the DREAMers and issued a permanent injunction against Brewer’s order.

The 9th Circuit affirmed that decision Tuesday.

Circuit Judge David Campbell wrote for the court that by “arranging federal classifications in the way it prefers, Arizona impermissibly assumes the federal prerogative of creating immigration classifications according to its own design.” A design, he wrote, that “neither mirrors nor borrows from the federal immigration classification scheme.”

Even though it did not rule on these grounds, the court said that it “bears noting, once again … that the record does suggest an additional reason for Arizona’s policy: a dogged animus against DACA recipients.”

The court agreed with the DREAMers that not having a driver’s license could cause “irreparable harm” to DACA recipients by interfering with their ability to work, go to school or care for their families.

Campbell’s opinion said the inability of plaintiffs to get a driver’s license “hinders them in pursuing new jobs, attending work, advancing their careers, and developing business opportunities.” Such damage is exacerbated by “young age and fragile socioeconomic status” of DACA recipients, he said.

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