Joshua Montano, left, and Deborah Robles protest in front of the Capitol the day after Arizona Gov. Jan Brewer, in an executive order reaffirming Arizona state law denying young illegal immigrants driver's licenses and other public benefits on Thursday, Aug. 16, 2012, in Phoenix. Brewer's order issued Wednesday says she's reaffirming the intent of current Arizona law denying taxpayer-funded public benefits and state identification to illegal immigrants. Young illegal immigrants could start applying Wednesday with the federal government for work permits under the Obama administration's Deferred Action for Childhood Arrivals. The program defers deportations for young illegal immigrants if they meet certain criteria. (AP Photo/Ross D. Franklin)

Ross D. Franklin

State officials are going to grant driver's licenses to some people not in the country legally even as Arizona continues to deny the same privilege to “dreamers.”

The Department of Transportation has decided that those granted “parole in place” by the Obama administration are legally “authorized” to be in this country, ADOT spokesman Timothy Tait said Monday.

That distinction is critical.

A 1996 state law says licenses are available to only those who are citizens or whose presence is “authorized by federal law.” Tait said his agency reads the Immigration and Naturalization Act to specifically grant the administration the power to allow undocumented relatives of those serving in the military or who have served to remain.

By contrast, ADOT, under directive from Gov. Jan Brewer, has decided that those in the program known as Deferred Action for Childhood Arrivals, a program implemented by the Obama administration for others who are not in this country legally, does not meet that definition.

The state's effort to make that distinction come as a federal appeals court is considering whether Brewer's action is legal. Victor Viramontes, attorney for the Mexican American Legal Defense and Educational Fund, said the state's action should help his case against the state.

“This is another example of the state irrationally discriminating between some people that the federal government has authorized to be present and others,” he said. Viramontes said those in the DACA program are equally as authorized to be here as those in the new program.

Tait, however, said ADOT sees it different.

In essence, the new federal policy says that relatives of those in the military do not have to leave the country to apply for legal status. Instead they are being granted “parole in place.”

The same change applies to relatives of veterans and reservists.

In a policy memorandum issued last month, U.S. Citizenship and Immigration Services said the change is permitted by the Immigration and Naturalization Act. It gives the Homeland Security secretary the discretion, on a case-by-case basis, to “parole” for “urgent humanitarian reasons or significant public benefit” any non-citizen applying for admission.

The memo acknowledges that while the policy normally is used to allow entry into this country, it also says it can be used for “parole in place” for those who are already in the country.

Those accepted into the program can get a federal Employment Authorization Card entitling them to work legally in this country – the exact same card issued to DACA recipients. But Tait said that, as far as the state is concerned, is where the similarity ends.

The state's contention is that the “parole in place” designation, even if applied to a large group, is specifically authorized by federal law.

Deferred action, announced last year by the Obama administration, allows those who were brought to this country as children to apply for permission to remain if they meet certain other requirements. That permission is for a two-year period, though it is renewable.

The last available report has close to 17,000 Arizona residents already approved.

Tait said, though, that DACA is far different than the parole program.

“Deferred action is the discretionary decision not to enforce federal immigration law with respect to an individual or group,” he said. In essence, he said, it amounts to little more than a decision by federal agencies to simply not try to deport anyone who meets the criteria.

But Viramontes said ADOT is missing the point.

“Prosecutorial discretion, a form of deferred action, is a form of authorized presence,” he said. “They're making up distinctions that have no support in federal law.”

Tait, however, said there are sufficient distinctions.

“Parole increases an individual's chance of eventually obtaining a 'green card'” which authorizes permanent residency, Tait said.

He also said that federal law says that those “present in the United States without being admitted or paroled” are not eligible for legal admission.

“A parolee is no longer subject to this ground for inadmissibility,” Tait said, something that does not apply for those in the DACA program.

But Viramontes said the state is drawing distinctions where none exist, and he said that helps bolster MALDEF's arguments in federal court that policy of giving licenses to some and not others violates equal protection requirements of the U.S. Constitution.

“This is exactly the kind of circumstance that makes their policy illegal,” he said.

“There are some individuals that the federal executive deems to be present, that they acknowledge are present with authorization and other individuals the federal executive has deemed to have authorized presence and they refuse to acknowledge those,” Viramontes said. “That's the fundamental problem with their position.”

MALDEF lost the first round earlier this year when a federal judge refused to order Brewer and ADOT to begin issuing licenses to those in DACA. A federal appeals court heard arguments on that three weeks ago but has not yet issued a ruling.

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