The state has retained a former immigration official as an expert in its bid to deny driver’s licenses to thousands of Arizona “dreamers’’ eligible for the deferred action program.
In documents filed in U.S. District Court here, attorney Robert Brown acknowledged that the directive by the Obama administration permits those in this country illegally to stay. It even provides papers allowing those in the program to work legally.
But Brown, a former district director for what at the time was the Immigration and Naturalization Service, says nothing in the Obama administration’s order authorizes these individuals to be in the country.
Potentially more significant for the legal fight now playing out in court, Brown contends that those in the administration’s program, formally known as Deferred Action for Childhood Arrivals, are not the same as those in other deferred action programs — people to whom the state has given licenses.
Those distinctions are critical in the fight by Gov. Jan Brewer to convince a federal judge that Arizona is not required to provide licenses.
A 1996 state law requires applicants to show that their presence in this country is “authorized by federal law.” And if Judge David Campbell can be convinced that those in the program are not “authorized,” it undermines the lawsuit filed on behalf of those who contend Brewer and her administration are acting illegally.
“Filing for DACA and a subsequent grant (or denial) of DACA does not confer lawful status and does not change the fact that the foreign national is removable under the Immigration and Nationality Act,” Brown wrote in his statement to the court.
“Likewise, there is no federal law that authorizes a DACA recipient’s presence,” he continued. “Quite the contrary, by deferring removal, the executive has decided to not enforce federal immigration law as to a DACA recipient.”
Campbell already has rejected a request for an immediate directive to provide licenses. Instead he will let the case play out with a full trial.
But the judge did suggest he believes the challengers could succeed in their claim based on an equal protection argument. That’s because Arizona does provide licenses to others in different deferred action programs.
“Defendants have identified nothing ... to suggest that DACA recipients are somehow less authorized to be present in the United States than are other deferred action recipients,” Campbell wrote. “All deferred action recipients are permitted to remain in the country without removal for a temporary period of time and the Employment Authorization Documents held by those recipients appear to be valid only for a temporary period.”
It would be a constitutional violation for the state to provide disparate treatment to individuals who are in similar situations.
Brown, in his court filing, seeks to undermine that claim.
He said the new deferred action program is similar to others in the respect that it involves the “prosecutorial discretion” of federal immigration officials to decide who to pursue and who not to pursue. But Brown said every other kind of deferred action is specifically authorized by Congress.
For example, he said those seeking asylum or refugee status can be allowed to remain in this country. And they are among the groups which have been granted Arizona licenses.
Brown, however, said that is specifically authorized under the Immigration and Nationality Act.
Similarly, Brown said Congress approved the Violence Against Women Act, which he said is based on “express congressional intent” to allow victims of domestic violence to remain and even provides a path to legal status.
“DACA, on the other hand, provides relief to a population of foreign nationals to whom Congress has repeatedly refused to grant status or another other basis to remain in the United States, and provides no pathway to status,” Brown wrote. “It is merely an enforcement decision, not a federal law.”
Hanging in the balance is the ability of Arizonans accepted into the program to be able to drive, including to school and to the jobs, which the Obama administration has said they can have.
At last count, more than 539,000 applications had been received across the country, including close to 18,500 from Arizona.
U.S. Citizenship and Immigration Services, which is handling the process, has approved 365,000 requests, nearly 13,700 of those from Arizona residents. That includes the five plaintiffs challenging Brewer’s action.
It has been estimated that about 80,000 Arizonans actually could qualify for the program which covers those in the country illegally who arrived before age 18, were not yet 30 when it was announced, and are not guilty of felonies and certain misdemeanors.
Last year, however, the Arizona Department of Transportation said it would not provide licenses to anyone in this particular deferred action program. That led a coalition of civil rights groups to file suit on behalf of five individuals not in this country legally who had been accepted into the program but are unable to get licenses.
In May, Campbell turned down a request for an immediate order to provide licenses while the case makes its way through the legal system.
The judge said challengers may eventually prove that Brewer’s policy is unconstitutional, citing that evidence that Arizona already issues licenses to some others who are in similar types of programs where they are allowed to remain despite their technically being in the country illegally.
But Campbell said the injunction that these “dreamers” want, ahead of a full-blown trial, requires proof they are being irreparably harmed in the interim. And he said the evidence shows that is not the case, especially as several of them have admitted they’re driving anyway.