In June 2012, President Obama signed the Deferred Action Childhood Arrivals (DACA) executive order. This allows the children of undocumented immigrants to the United States who would otherwise be subject to deportation to apply for permission to remain in the United States if they meet certain criteria.
This “deferred action” allows them to remain in the country without fear of deportation for up to two years and to gain employment authorizations. The authorization would be reviewed for renewal at the end of each two year period. Deferred action does not bestow legal status. It is a tool of prosecutorial discretion in determining which cases to pursue for deportation.
An estimated 1.7 million people who immigrated as children may be eligible for the program. As of March 2013, more than 470,000 applications had been received. Of those reviewed, a little more than 268,000 had been approved.
For those of driving age (eligibility requires that they had to be 30 years old or younger as of June 15, 2012), this reprieve gave access to things like driverís licenses. Currently only 10 states and the District of Columbia allow undocumented immigrants to get a driverís license.† Most states, however, are allowing those eligible under DACA to be issued one.
Then thereís Arizona.
In August of 2012, in response to the Presidentís executive order, Governor Brewer issued her own executive order instructing state agencies (including the Motor Vehicle Department) from issuing any state IDs to those with employment authorizations who qualified for deferred action.† The MVD could still issue licenses to undocumented persons with employment authorizations who qualified under other programs Ė just not those who qualified under DACA.
Arizona has become the poster child for anti-immigrant policies the past several years. Itís most notorious effort was AB 1070, signed into law by Governor Jan Brewer in 2010. The law made it legal for law enforcement to racially profile in order to determine the legal status of individuals in a variety of situations. The United States Supreme Court struck down all but one of the provisions, allowing inquiry into immigration status during law enforcement stops.
Arizonaís anti-immigrant laws have been the subject of numerous lawsuits from rights groups and the Department of Justice.† In response to Brewerís executive order, the ACLU filed a class action lawsuit in November 2012 on behalf of Arizona Dream Act Coalition and five additional plaintiffs, claiming the order violated the Supremacy Clause and the Equal Protection Clause of the United States Constitution.
The judge has hinted that the plaintiffsí claims would likely prevail.
In response, in August of this year, Jan Brewer expanded her executive order,†stating that no undocumented person eligible for deferred action shall be allowed to obtain a driverís license. Other categories of deferred action include those without sponsors, witnesses of crimes, domestic abuse victims, and other humanitarian reasons. Arizonaís reasoning for the expansion is that these individuals cannot justify authorized presence in the United States under federal law. Even though, technically, federal law is authorizing their presence.
In other words, now everyone under deferred action is prohibited from receiving a driver’s license.
The idea of giving undocumented immigrants a driverís license is one that is hotly debated. It took my home state of California over a decade of efforts to become the tenth state to do so Ė just this week. The law will allow undocumented workers to get a driverís license that specifically states it is only for driving and is not to be used for any other purpose (such as identification verifying legal status). These individuals still have to take and pass the driving test like everyone else and the license represents that they did just that. It also allows them to drive to work, make money and put it back into the economy.
In the complaint, the plaintiffs argue that the state cannot claim the policies have any valid justification or rational basis. They are seeking to have the executive order and policies deemed unlawful and invalid. It remains to be seen if Arizonaís legal maneuver will work or if it will continue to be seen as a direct attempt to thumb its nose at the Presidentís order.