Deferred Action Program Revives Debate over Driver’s Licenses for Unauthorized Immigrants
The Deferred Action for Childhood Arrivals (DACA) initiative allows qualified unauthorized immigrants brought to the United States as children to apply for work authorization and protection against deportation. This federal action has had an immediate ripple effect on policy areas which are the province of state authority — for example the granting of driver’s licenses or college tuition at in-state rates — prompting divergent outcomes.
As the DACA initiative took effect on August 15, Arizona Governor Jan Brewer issued an executive order applying specifically to DACA recipients, declaring them ineligible to apply for driver's licenses or any other unspecified "public benefits" in Arizona. On November 29, lawyers representing five DACA recipients denied driver’s licenses under the executive order filed a lawsuit challenging the constitutionality of the governor's action. In contrast with the Arizona executive order, lawmakers in Nevada and Illinois are advancing legislation to allow all unauthorized immigrants to apply for driver’s licenses, marking the beginning of a reversal of the strong pushback against such measures in recent years.
The Arizona lawsuit represents immigrant advocates’ opening move in what could potentially be a long legal battle to block state actions that prohibit DACA beneficiaries from receiving driver’s licenses. Arizona, Michigan, and Nebraska have blocked driver's licenses for this population.
In addition to challenging the constitutionality of Governor Brewer’s action, plaintiffs in the Arizona lawsuit allege that the denial of driver’s licenses will make it "difficult, if not impossible" for DACA recipients to accomplish the "essential aspects of daily life." The lawsuit cites US Census Bureau statistics showing that more than 87 percent of Arizonans (and 86 percent of Americans) commute to work by car.
The eligibility of DACA beneficiaries to qualify for driver's licenses rapidly gained national attention last summer after President Obama announced the new initiative. Under DACA, certain unauthorized immigrants who were brought to the United States as children and meet other criteria are eligible to apply for "deferred action" from the federal government, which gives them two-year protection against removal and enables them to receive work permits and social security numbers. The federal government frequently grants deferred action to various other categories of noncitizens, including victims of human trafficking, spouses and children of lawful permanent residents who are applying for protection under the Violence Against Women Act (VAWA), and applicants for certain types of visas.
While each state sets its own driver’s license policy, most states allow noncitizens who hold work permits or who are granted deferred action to apply for driver’s licenses. On August 15, the same day that US Citizenship and Immigration Services (USCIS) began accepting applications for DACA benefits, Governor Brewer issued an executive order stating that DACA recipients would not qualify for Arizona driver's licenses since the program did not confer "lawful or authorized status or presence" in the United States, a prerequisite for obtaining a driver’s license under Arizona law. Shortly thereafter, Nebraska Governor Dave Heineman and Michigan Secretary of State Ruth Johnson announced similar policies in their states. Texas Governor Rick Perry also issued a memorandum stating that deferred action under DACA conveys "absolutely no legal status whatsoever" to noncitizens, though the memo did not appear to preclude DACA beneficiaries from applying for driver’s licenses. According to media reports, officials at the Texas Department of Public Safety have stated that DACA beneficiaries will be eligible to apply for driver’s licenses.
The November 29 lawsuit alleges that the Arizona executive order is preempted under federal law, and that it violates the 14th Amendment’s Equal Protection Clause. The suit notes that the executive order stands at odds with prior guidance issued by the state’s Motor Vehicles Division, which established that driver’s license applicants who demonstrated that they had been granted deferred action and a work permit by the federal government would be found to have demonstrated "lawful or authorized status or presence" for the purposes of receiving a license. Thus, under one policy, noncitizens in Arizona who are granted deferred action on non-DACA grounds qualify to receive driver’s licenses, while under the other policy those who are granted deferred action under DACA do not.
Unlike Arizona, Nebraska, and Michigan, a number of states have taken active steps to affirm the eligibility of DACA beneficiaries for driver's licenses. In California, Governor Jerry Brown on September 30 signed into law a bill which expressly states that DACA beneficiaries meet the "lawful presence" requirement for driver’s license eligibility. On October 4, Wisconsin Attorney General J.B. Van Hollen sent a letter to the state’s transportation secretary opining that DACA recipients would qualify to apply for driver’s licenses. Nevada Governor Brian Sandoval announced a similar position in November.
Outside the DACA context, the merits of unauthorized immigrants qualifying for driver's licenses have been a subject of active policy debate for a long time. Proponents claim that such measures advance public safety. They argue that work demands frequently require unauthorized immigrants to drive regardless of whether they have licenses, and that granting them licenses only helps ensure that all drivers have passed state safety tests and are insured. Critics, meanwhile, argue that granting driver’s licenses creates a magnet for unauthorized immigrants. In September 2007, New York Governor Eliot Spitzer backed away from a plan to allow unauthorized immigrants to apply for driver’s licenses after igniting a firestorm of criticism.
Since then, the number of states granting driver’s licenses to unauthorized immigrants has steadily declined. While seven states allowed unauthorized immigrants to apply for driver’s licenses in November 2007, just two states — Washington and New Mexico — now do so. One state — Utah — allows unauthorized residents to apply for a restricted "driving privilege card" which authorizes holders to drive, but does not serve as proof of identify for other purposes, such as purchasing a gun or boarding an airplane.
However, this trend may be reversing — helped perhaps by a post-election calculus in both political parties that immigrant-friendly measures may have gained new political currency.
On December 4, the Illinois Senate by a wide margin passed a bill that would qualify unauthorized immigrants to receive specially formatted, three-year, renewable driver’s licenses if they can demonstrate one year of presence in the state. Such licenses would state that they are not to be accepted as proof of identity for nondriving purposes. The bill has yet to come up for a vote in the state’s House of Representatives, but may do so in January.
Lawmakers in Nevada likely also will consider similar legislation in the coming year. In early December, Democratic state Senator Mo Denis announced that he plans to introduce a bill that would allow unauthorized immigrants in that state to receive specially formatted licenses. Reportedly, the new Nevada plan would call for licenses modeled after Utah’s restricted driving privilege cards.
Policy Beat in Brief
USCIS Receives Nearly 368,000 Deferred Action Applications. US Citizenship and Immigration Services (USCIS) has received 367,903 applications for the Obama administration’s Deferred Action for Childhood Arrivals (DACA) program, according to statistics released by the agency in mid-December. Under the program, unauthorized immigrant youths and young adults who arrived in the United States as children and who graduated from US high schools or received their general equivalency development (GED) certificates may qualify for two-year protection against deportation and work authorization. Thus far, 102,965 individuals have been granted deferred action.
STEM Bill Passes House, ACHIEVE Act Introduced in Senate. Less than a month after a number of prominent Republicans called on GOP legislators to embrace immigration reform, the House of Representatives, by a vote of 245-139, passed a new GOP-backed bill to increase the number of visas available for high-tech workers. The bill, known as the STEM Jobs Act of 2012, would increase the number of permanent resident visas available to foreign students holding advanced degrees in science, technology, engineering, or mathematics from American universities. Meanwhile, on the Senate side, two retiring members, Senators Kay Bailey Hutchison (R-TX) and Jon Kyl (R-AZ) introduced the ACHIEVE Act : the Assisting Children and Helping Them Improve Their Educational Value for Employment Act, which would permit certain unauthorized young adults who were brought to the United States as children to apply for legal status.
Both of the new bills face uphill battles in the Senate, however, where Democrats are in the majority. Though many Senate Democrats support an overall increase in the number of STEM visas, there is broad opposition to the STEM Jobs Act of 2012 because the bill also calls to dismantle the Diversity Visa Program. That program currently grants up to 55,000 lawful permanent resident visas each year to noncitizens from countries that are currently under-represented in US immigration streams. The ACHIEVE Act has been criticized for not placing potential noncitizen beneficiaries on a pathway to citizenship, a feature which critics allege would lock beneficiaries into second-class status.
New Pew Report Finds Drop in the Unauthorized Immigrant Population in 2011. The number of unauthorized immigrants residing in the United States fell from 11.2 million in 2010 to 11.1 million in 2011, according to a new report by the Pew Hispanic Center analyzing US Census Bureau data. The total unauthorized population has fallen significantly since 2007, when an estimated 12 million unauthorized immigrants resided in the United States. The report's authors attribute this drop to a decrease in the number of new unauthorized immigrants entering the United States from Mexico.
IRS Announces New ITIN Rules. In a move that stands to impact a large number of unauthorized immigrants in the United States, the Internal Revenue Service (IRS) announced on November 29 that it was tightening the rules governing the use of Individual Taxpayer Identification Numbers (ITINs). Although unauthorized immigrants in the United States are generally ineligible to receive social security numbers, the government has long permitted such individuals to use ITINs in order to file tax returns, pay taxes, and receive tax refunds if they are eligible. Under the new rules, ITINS will no longer be granted for indefinite lengths of time, and instead will only be valid for five years. In addition, the IRS will require individuals applying for ITINs for themselves or their dependent children to submit original identification documents or certified copies of documents from the originating agency, rather than the notarized copies that IRS previously accepted. According to the IRS, the new rules are intended to prevent fraudulent ITIN use.
USCIS Launches New Website for Entrepreneurs, Announces Large Increase in EB-5 Petitions. US Citizenship and Immigration Services unveiled a new "Entrepreneur Pathways" web portal to better distribute information on visa categories and the visa application process for foreign-born entrepreneurs interested in residing in the United States. The initiative is part of the agency's larger "Entrepreneurs in Residence" program, which aims to tailor USCIS's policies and practices in order to encourage economic growth. In related news, new statistics released by USCIS on its visa program for immigrant investors, the EB-5 program, indicate that the agency received 6,041 immigrant investor petitions in FY 2012 a 59 percent increase in petitions over the previous fiscal year and the largest number of petitions that the agency has received since the EB-5 program was created in 1990. The EB-5 visa program enables foreign nationals who invest large sums of money in the United States ($500,000 or $1 million) and can demonstrate that their investments have created at least 10 US jobs to apply for lawful permanent residence.
National Guard to Stay on the Border. The US Department of Defense (DOD) and Department of Homeland Security (DHS) announced that National Guard troops will remain deployed along the southwest border through 2013, though their mission was originally scheduled to end at the close of this year. President Obama first deployed the National Guard to assist at the border in June 2010, after several border governors expressed concerns over border security. The guardsmen were intended to assist US Customs and Border Protection in stopping drug and immigrant smuggling, and in preventing border violence.
New Rules Proposed to Prevent Sexual Assault in Immigration Detention Facilities. The Department of Homeland Security (DHS) published newly proposed regulations to govern the prevention and detection of sexual assault in immigration detention facilities. Among other changes, the new rules call for additional staff training on the prevention of sexual assault, the prohibition of cross-gender “pat down” searches of detainees, and the establishment of a Prevention of Sexual Abuse Compliance Manager at each detention facility. According to the records of Immigration and Customs Enforcement (ICE), there were a total of 138 sexual assault allegations made by detainees in immigration detention between January 2010 and June 2012.
State and Local Policy Beat in Brief
Colorado Compact Unveiled. A diverse coalition of faith-based groups, immigrant advocates, business leaders, and politicians on both sides of the aisle in Colorado unveiled the "Colorado Compact," a set of six principles which they believe should guide future immigration reform initiatives. The principles include crafting an immigration enforcement strategy that targets serious criminals, creating a visa system that is responsive to the needs of the economy, and offering a "sensible path forward" for unauthorized immigrants who are "of good character" and who agree to pay taxes and become integrated into society. The compact follows similar efforts in Utah, Indiana, and Idaho.
California AG Issues New Directive on Secure Communities. CA Attorney General Kamala Harris issued a new directive on December 4 instructing law enforcement agencies in that state that compliance with the federal government's detainer requests under the Secure Communities program are to be considered discretionary rather than "mandatory." Under Secure Communities, the federal government screens the fingerprints of all individuals arrested in enrolled jurisdictions against both criminal and immigration databases. If such a screen reveals that an arrestee is likely a deportable noncitizen, ICE can choose to file a "detainer" with the arresting law enforcement agency, which instructs the agency to hold the arrestee for 48 hours until an ICE agent can come and interview the person. Shortly after the CA Attorney General issued the directive, Los Angeles County Sheriff Lee Baca announced that he would instruct his deputies not to comply with detainer requests for individuals arrested for low-level crimes.
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