Arizona Driver’s Licenses for Undocumented Immigrants Lawsuit

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Governor Jan Brewer issued an order in August denying driver’s licenses for young undocumented immigrants who are protected from deportation and have received work permits under the new Department of Homeland Security policy. A US District Judge heard arguments in a lawsuit seeking to block Brewer’s action. Senior Staff Attorney for the ACLU of Arizona, Kelly Flood, gives and update on the lawsuit.

Jose Cardenas: Last week a Federal judge called into question the legal basis for Governor Jan Brewer's decision to deny driver's licenses to young, undocumented immigrants who received deferred deportation under the Department of Homeland Security policy announced last year. Joining me to update us on what happened is Kelly Flood, senior staff attorney on the case for the ACLU of Arizona. Kelly, thanks for joining us on "Horizonte." It was an interesting court hearing. Judge Campbell had lots of questions for both sides. But give us just a quick synopsis of what the issues were that were of most interest to the judge.

Kelly Flood: The judge was interested in two aspects of our challenge to the Governor's executive order as well as the Governor and the state's challenge to our lawsuit. And primarily, he was interested in evaluating whether there is a preemption created by the --

Jose Cardenas: Meaning Federal law takes care of this issue?

Kelly Flood: Correct.

Jose Cardenas: And they shouldn't be doing anything in this area?

Kelly Flood: Right. Because Congress sort of occupies the field of immigration but in this case, Congress has sort of delegated to the Department of Homeland Security the issue of the discretionary grant of deferred status that happened with the --

Jose Cardenas: Just to remind people, what happens the Department of Homeland Security about mid-year last year said they were going to defer prosecution of people who met certain criteria, basically, the dreamers, so-called.

Kelly Flood: Correct.

Jose Cardenas: And under Arizona statute, at least in theory, well, under Federal law that entitled them to authorization certificate. And at the same time that should have been able to get them driver's licenses under state law. Governor said that's not going to happen so you filed a lawsuit.

Kelly Flood: Correct.

Jose Cardenas: The judge didn't seem to be that impressed with the State's argument on the question of whether this was a denial of equal protection.

Kelly Flood: Right. The judge, I think the greatest challenge for us was on the preemption issue and the greatest challenge for the state was on the equal protection issue. The judge didn't seem to agree with the State's characterization of how it was treating DACA recipients of some sort of deferred action status. There are a number of other immigrants in the country who have deferred action which means that simply they are deportable but they are not being deported at this time.

Jose Cardenas: The government is not pursuing the case.

Kelly Flood: Correct. It's a prosecutorial discretionary issue large part.

Jose Cardenas: People who have that status get employment authorization document.

Kelly Flood: Correct,

Jose Cardenas: @hich as we noted would normally get them licenses. How did the State explain why they are treating these deferred action recipients differ from what they have done in the past?

Kelly Flood: They had a very hard time explaining that. They tried to justify the different treatment on a number of bases. One of which was that it's true prosecutorial discretion and not a deferred status pursuant to any other law or statute. However, the judge pointed out that there are other immigrants who are here pursuant to pure prosecutorial discretion and they were arguably similarly situated. The state also tried to justify its actions saying this would have meant a flood of 80,000 applicants for driver's licenses. Although those statistics are not necessarily accurate. And the State had done no study to determine whether that would really have burdened the Department of Transportation had 80,000 DACA recipients applied.

Jose Cardenas:I think nationwide the number more than like , who would 65,000-- when we talk about dreamers, the number is about 65,000. So that's over the entire country.

Kelly Flood: The country, right.

Jose Cardenas: They are not all here in Arizona.

Kelly Flood: Right. So the , number was brought into question as to whether that would even apply in the State of Arizona. The numbers have turned out to be far less. More in the range of 4,000 to 5,000, I believe.

How many students have received deferred action under this program?
Jose Cardenas:

Kelly Flood: I am sorry. I can't recall but I want to say 4,000 to 5,000. Are you talking about Arizona or the country?

Jose Cardenas: The country.

Kelly Flood: I'm sorry.

Jose Cardenas: 4,000 to 5,000 nationally, it's not been exactly a flood.

Kelly Flood: It's not a huge burden on any government in the state of Arizona.

Jose Cardenas: When can we expect a ruling from the judge?

Kelly Flood: He indicated he would rule quickly and he usually keeps his word on that, and we anticipate a ruling within two weeks from last Friday.

Jose Cardenas: And what kind of ruling do you anticipate?

Kelly Flood:Senior Staff Attorney, ACLU of Arizona

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