12/6/2012 1:48:00 PM Civil rights lawsuit filed in AZ against governor over driver's license decision
Alessandra Soler, executive director of the American Civil Liberties Union of Arizona, explains a lawsuit filed Thursday challenging the order issued by Gov. Jan Brewer denying state driver licenses to thousands of illegal immigrants who qualify for the federal "deferred action" program which allows them to remain legally and work in this country. (Capitol Media Services photo by Howard Fischer)
PHOENIX -- Calling the governor's actions illegal, civil rights groups filed suit Thursday to overturn an order by Gov. Jan Brewer denying Arizona driver licenses to illegal immigrants who qualify for the federal government's "deferred action' program.
Attorneys contend the Obama administration, in agreeing not to deport certain people brought here as children, specifically "authorized' them to be in this country. Those eligible also are being issued permits to work legally in the United States.
Brewer, however, contends that while the Department of Homeland Security is not deporting those who qualify -- potentially up to 1.4 million nationwide -- that does not mean they are in the country legally. And she points out that a 1996 Arizona law specifically requires proof the person's presence in the United States "is authorized under federal law.'
Challengers want U.S. District Court Judge David Campbell to rule that Brewer's order and any policies to implement it "are an impermissible state regulation' of immigration.
"It directly conflicts with federal immigration law because the federal government has authorized these young immigrants to live and work in this country,' said Jennifer Chang Newell, an attorney with the American Civil Liberties Union. "And they're therefore eligible for drivers' licenses in Arizona.'
Legal issues aside, Alessandra Soler, the state's ACLU director, said it's wrong to deny licenses to potentially 80,000 Arizonans who may eventually qualify for what is known formally as Deferred Action Childhood Arrival.
"This is a necessity for these folks who have been granted the right to live and work here,' she said.
"They cannot drive to school, they cannot driver to work,' Soler continued. "As a policy matter it just makes no sense, it's counterproductive.'
President Obama, in a Rose Garden speech in June announcing the policy, described it as a refinement of the administration's policy to concentrate its prosecution and deportation efforts on serious offenders.
In essence, the government is using its discretion not to pursue those who are under 30, arrived in this country before turning 16, have no record of a felony or serious misdemeanor, have resided here continuously for at least five years as of the date of the announcement, and are currently in school, have graduated from high school or obtained an equivalency diploma, or are honorably discharged veterans.
Those deferrals are good for two years and can be renewed.
The most recent figures from Homeland Security show that nearly 300,000 applications have been accepted nationwide. The agency says it has received more than 11,000 requests from those living in Arizona but does not spell out how many of these people have been granted deferred status.
Newell acknowledged the new federal policy does not mandate that states grant driver licenses to those who qualify.
"But that doesn't mean that the state is allowed to make a decision for itself that people that the federal government has given permission to reside in this country are, in fact, 'unauthorized,' ' she said.
All that, however, is built on that premise of authorization.
Peter Boogaard, a spokesman for the Department of Homeland Security, said the agency's decision not to try to deport some people does not actually "authorize' them to be in the United States.
But in what may be a fine legal distinction, the federal government does not consider them to be here illegally. Boogaard said those who have been given deferred status "do not accrue unlawful presence.'
Boogaard said his agency will not comment on what Arizona is doing regarding driver licenses.
Federal supremacy on immigration aside, the lawsuit also alleges violation of constitutional provisions guaranteeing equal protection under the law.
The challengers note the state Motor Vehicle Division issues Arizona driver licenses to others who have been granted "deferred action' under different federal programs, including those allowed to remain without fear of deportation because they are victims of domestic violence. They said Brewer cannot unilaterally decide that those in the Deferred Action Childhood Arrival program are different.
Records obtained by Capitol Media Services found more than 68,000 instances since 2005 where MVD issued an Arizona driver's license or state ID card to someone with a federal "employment authorization card.' That's the exact same kind of card that those who qualify under this new program are being granted.
But current MVD policy, pursuant to Brewer's August order, says such cards issued under this deferred action program are ineligible.
MVD spokesman Tim Tait said these licenses are issued for limited amounts of time and have to be renewed, meaning some of that 68,000 figure could be duplicates.
Brewer takes the position that the administrative decision by the Obama administration not to pursue deportation -- and even to issue work papers -- does not provide the federal authorization required under Arizona law.
"Unlike all previous classes granted deferred action, the DACA program is neither congressionally authorized nor enshrined in federal law,' said press aide Matthew Benson. And he said the "legal limbo' that those eligible find themselves in is not due to any action by the state.
"Rather, it is due to President Obama's decision to pursue this program via executive action rather than through the proper legislative process,' he said.
The lawsuit, however, says Congress gave the executive branch "broad discretion' in enforcement of immigration laws, including the ability not to pursue those who are otherwise subject to deportation. And the challengers to Brewer's action say deferred action status is a form of that discretion.
Legal issues aside, Soler called Brewer's action "wrong and mean-spirited.'
"In this instance, the state of Arizona is playing politics with the hopes and dreams of the ambitious leaders of tomorrow,' she said.
Dulce Matuz, brought to the country illegally at age 15 and eligible for the program, was more pronounced in her criticism.
"Brewer needs to stop singling out 'dreamers' and stop treating us differently,' said Matuz, who also is the president of the Arizona DREAM Act Coalition, one of the plaintiffs in the lawsuit. The 'dream' reference is an acronym for Development, Relief and Education of Alien Minors Act, proposed federal legislation to provide a path to citizenship for those brought to the U.S. as minors.
"Our oppressors will not give us our freedom willingly,' Dulce said.
Newell said she knows of only two other states which have specifically adopted policies denying licenses to those in this program: Nebraska and Michigan. Arizona is the only place suit has been filed.
Nicholas Espiritu, an attorney with the Mexican American Legal Defense and Educational Fund, agreed with the governor in one respect: the deferred action policy announced by the administration "is not the ultimate solution.'
"Instead, we need a permanent, humane solution that allows for full, not partial, not temporary, and not second-class status for these individuals,' he said.
The president, in making the announcement, said executive action was necessary because Congress has refused to approve the DREAM Act even though it has had bipartisan support in the past, including at one time by Arizona Republican Sen. John McCain.