Driver’s License Ban

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Arizona, which is one of only two states that deny driver’s licenses to young undocumented immigrants allowed to work and stay under the Deferred Action for Childhood Arrivals (DACA) program, has expanded the ban to include any immigrant granted deferred action from deportation. Kelly Flood, Senior staff attorney for the ACLU of Arizona discusses the policy change.

José Cárdenas: Thank you for joining us. Arizona, which is one of only two states that deny driver's licenses to young undocumented immigrants allowed to work and stay under the Deferred Action for Childhood Arrivals, known as DACA, Program has expanded the ban to include any immigrant granted deferred action from deportation. Here with me to talk more about this policy change is Kelly Flood, senior staff attorney on the case for the ACLU of Arizona. Kelly, welcome back to "Horizonte." The case that we referred to in that introduction is the one that is pending before Judge Campbell right now. And as I understand the governor's action was a response to the last ruling by Judge Campbell. So let's start with that what did he say that the state was responding to?

Kelly Flood: Well in the first hearing that we had in the case, where he determined whether or not he was going to stop the law from going into effect, or, excuse me, the policy, he noted to the state that the DACA recipients were similar to other immigrant groups in the state of Arizona who received employment authorization documents, EADs, from the federal government, in the past, any immigrant with an EAD had been given an opportunity to get a driver's license in the state of Arizona. So Judge Campbell said why are you just picking on this one group with the EAD, what makes them different from the other groups?

José Cárdenas: And this is in connection with your equal protection arguments.

Kelly Flood: Yes, correct.

José Cárdenas: It looks like your creating similarly situated different groups of people differently.

Kelly Flood: Exactly, right. He pointed out that there were numerous other groups who get EADs in a similar status to DACA recipients, such as crime victims and witnesses who are allowed to stay in the state for whatever period of time is necessary to conclude a case, and other immigrants who receive any sort of deferred status and are allowed to stay in the state and receive an EAD from the federal government and they were already all getting licenses prior to the initial ban that only excluded DACA recipients.

José Cárdenas: And the judge's ruling was several months ago, wasn't it?

Kelly Flood: Well that was last year. That initial ruling. And then the state indicated in the hearing that occurred, that from what the ruling resulted, well, we didn't realize that we were giving licenses to all of these other groups. We will go back and fix that. At another hearing earlier this spring, the state announced, okay, we're going to change our policy and we will announce it to everyone shortly. And we will talk about how it will impact this case. And then last week, the state announced the policy.

José Cárdenas: Let's talk about that policy. Exactly what is the new policy of the state of Arizona, as it relates to getting EADs, authorization documents to immigrants?

Kelly Flood: Well it doesn't impact who gets an EAD because that is determined by the federal government. But what it impacts is who gets a driver's license in state of Arizona. And the new policy from the state is that anyone an immigration status designation A11, C14, and C33 is not going to be good -- will not be allowed to get a driver's license.

José Cárdenas: You have to translate a little bit. What is the common theme in the three categories?

Kelly Flood: The common theme is the word deferred. It's as if the state went through all of the immigration statuses that exist under the federal system and picked out any status that includes the word deferred in the description.

José Cárdenas: Other than the children that we're talking about, the students who have deferred status under DACA, and those are as I remember some of the criteria under 16 when they arrive and so on and so forth. What are the other categories of deferred action that are now impacted by the state's decisions?

Kelly Flood: Well folks with C14 designation, are deferred status; are deferred action as well. A host of people who may qualify for and get C14 status. Widows who were married for less than two years to a U.S. citizen, orphans, crime victims, crime witnesses, and other people according to the federal government are entitled to deferred status for any period of time that may be required under their circumstances. And there is a separate category, which is very interesting A11, deferred delayed departure, which currently only applies to Libyans. That is a little bit strange, but --

José Cárdenas: And the state insisted that these changes wouldn't impact in their view, truly deserving people. People who needed their driver's license to get a job and so on and so forth. That doesn't seem to be the case, at least not based on newspaper reports.

Kelly Flood: Right. As we saw on the front page of The Arizona Republic earlier there are numerous victims, sex trafficking victims who are affected by this because those are people who obtain their EADs, C14 status deferred action recipients and those folks might qualify or some of them might qualify for other avenues, such as the violence against women act and some of the other potential immigration status adjustments. However, many of them currently have C14, but what we have learned from immigration lawyers and advocates in the state, C14 is a go-to status for many immigrants because it is faster, more efficient, and it is easier to obtain than some of the other statuses like VAWA, Violence Against Women Act -

José Cárdenas: It may be hurting people that the state perhaps didn't intend to harm, but isn't it an adequate response to the judge's point? Are we treating people poorly, but we're treating everybody poorly, so doesn't that respond to the equal protection issue?

Kelly Flood: We don't think it solves the problem, no. First because it's clear that the state's new policy was just a reaction to a lawsuit. There was no reason for them to do this other than to respond to what we and the judge pointed out.

José Cárdenas: Now why would the motive make any difference in terms of the judge's ruling?

Kelly Flood: The motive matters in this case because we have alleged that the state's policy violates equal protection. In order to survive an equal protection challenge, government has to establish that it made its decision to change a policy or rule based upon a rational basis, and in this case, rational basis plus. That is what the judge determined the standard to be previously. We don't believe making a choice to change a policy simply to prevail in a lawsuit would satisfy the rational basis plus test.

José Cárdenas: Well I guess we will find out soon enough whether the Judge Campbell agrees with you. Thank you for joining us to talk about it.

Kelly Flood: Thank you.

Kelly Flood:Senior Staff Attorney, ACLU of Arizona

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