A federal appeals court may be poised to void a decision by Gov. Jan Brewer to deny driver's licenses to “dreamers” the Obama administration has allowed to stay and work in this country.
During a 45-minute hearing last month, Judge Marsha Berzon repeatedly chided Tim Berg, the governor's lawyer, for his contention that those denied licenses are not being irreparably harmed. She said the testimony of the five plaintiffs in the case show that their lives have been affected.
Berg told the three-judge panel of the 9th U.S. Circuit Court of Appeals that the plaintiffs said they do manage to get to work and school. And he said there is evidence that some are actually driving.
Berzon said that argument makes no sense.
“For many reasons it seems strange for the state to be standing up here and saying, well, this is all not a problem for people to work because they can just drive illegally,” she said.
“There are problems for everybody else in your state if you have people driving around illegally,” Berzon said. “And you're just saying they can just break the law.”
The issue is crucial because Victor Viramontes, attorney for the Mexican American Legal Defense and Educational Fund, has to show his clients are suffering “irreparable harm” if he is to convince the appellate judges to enjoin Brewer denying licenses to the dreamers, at least while the issue is litigated in federal court in Phoenix.
Berg acknowledged that there was testimony from one person who said there are jobs she would have applied for but cannot because of the lack of a legal driver's license. But he said the record shows she had another job.
“So what?” Berzon shot back. “Because she's not starving, she doesn't have irreparable harm?”
Berg pointed out that U.S. District Judge David Campbell, in refusing to grant an injunction, said he found no irreparable harm, including from driving without a license. That provoked an angry response from Judge Harry Pregerson.
“They're living in fear all the time,” he told Berg.
“Don't you understand that?” Pregerson continued. “That's what it's all about.”
Hanging in the balance is the enforceability of Brewer's 2012 executive order declaring that those in the federal program, known as Deferred Action for Childhood Arrivals, are not entitled to licenses.
The program allows those who meet certain qualifications to stay for two years –permission that is renewable – and be issued documents allowing them to work. The most recent figures from U.S. Citizenship and Immigration Services show that more than 20,000 Arizonans have applied and nearly 17,000 already have been accepted into the program.
But the state Department of Transportation, on order from Brewer, is refusing to issue licenses to anyone in the DACA program.
Brewer is citing a 1996 state law that says licenses are available solely to those “whose presence in this country is “authorized by federal law.” The governor takes the position an administrative decision by the president and the Department of Homeland Security not to deport them does not make their presence “authorized,” even if they are given work papers.
That issue goes to the question of whether the Arizona law – or at least Brewer's interpretation of it – is preempted by federal law.
Viramontes argued that the law – or at least Brewer's interpretation of it –interferes with the prerogative of the president to decide how to enforce immigration laws.
But Berzon pointed out that the Department of Homeland Security has never claimed those who are granted DACA status are entitled to state-issued driver's licenses. She questioned whether that allows Arizona to decide whether those in the program meet the state's legal requirements.
Viramontes countered that the Arizona statute on which Brewer is relying specifically refers to authorization under federal law. He told the three-judge panel that limits Arizona's ability to draw its own conclusions.
Berg had his own take on DACA recipients.
“They are here illegally,” he said.
Berg said the only thing DACA status means is that the Department of Homeland Security is not going to attempt to have them deported, and he said Arizona can regulate who operates a motor vehicle in the state.
“Driving is a privilege,” Berg said. “The state has chosen to categorize the people to whom it extends that privilege.”
Berg conceded under questioning from Berzon there are limits on the state's right to decide who can drive: He said it is unlikely Arizona could deny licenses to “resident aliens,” those who are not citizens but who the federal government has said are here legally.
Federal preemption aside, that still leaves the question of the harm to DACA recipients from not being able to legally drive. Berg said they do get around, whether driving illegally, being driven by others or using public transportation.
“If somebody took your driver's license away and told you to take the bus, you don't think you'd be irreparably harmed?” Berzon asked him.
“I think I would be horribly inconvenienced, your honor,” he responded. “But I don't think I would be irreparably harmed.”
Berzon seemed unconvinced.
“You're harmed, and it's irreparable,” she said.
Judge Morgan Christen did get Berg to admit Arizona could not legally say that DACA recipients, given federal permission to work, could not hold a job in Arizona.
“When you're saying somebody can't drive, you're essentially saying they can't work,” Christen said, given the urban sprawl and limited mass transit in Arizona. “And many people can't get jobs without a license.”
Berg reiterated his point that people are driving without a license, saying there's no evidence anyone is being denied the legal ability to work.
“I don't think this court should presume it's true just because it seems intuitive to you,” he told the judges.
“We shouldn't assume it's true because it is true,” Pregerson shot back.
“With all due respect, your honor, we disagree about that,” Berg said.
“That's all right,” Pregerson responded. “I don't need your respect.”