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Critics debate Brewer immigration order

Joshua Montano, left, and Francisco Luna 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)

Gov. Jan Brewer’s executive order that directs state agencies to deny public benefits and state identification to young illegal immigrants has created a political firestorm.

Critics have accused the governor of political grandstanding, pandering to the Republican Party’s conservative wing and misunderstanding immigration law. The governor, on the other hand, blamed the Obama administration for the situation.

The executive order, issued Wednesday, has underscored the complexity of the nation’s immigration system and the fragility of a federal rule that only deals with part of the illegal immigration problem.

In Arizona, some 80,000 illegal aliens who are eligible to apply for deferred deportation may ultimately obtain a work permit, but the Brewer administration won’t let them get a driver’s license or receive public benefits.

In theory, this means they can legally find work, but they can’t legally drive to work. This also means they’ll pay taxes, but they won’t qualify for government programs their taxes helped to pay for.

In her executive order, Brewer said state law bars the issuance of a driver license to persons who can’t prove that their presence here is authorized under federal law.

Statutes also limit illegal aliens’ access to public benefits, she said.

Consequently, Brewer ordered state agencies to come up with rules to prevent those who qualify for the new federal immigration policy from getting public benefits and a driver license.

“We’re in quite a chess match between Brewer and Obama. That’s for sure,” said Maurice Goldman, an immigration lawyer from Tucson.
Obama’s policy would allow hundreds of thousands of illegal immigrants who came to the country while they were children to remain here and obtain a work permit if they satisfy the program’s requirements.

They must have been brought to the country before they turned 16, have been living here for five years, are in school or are high school graduates, have no criminal record and be under age 30.

Applications for the program began this week.

Concrete implications

Brewer maintained that she is merely upholding Arizona’s laws, but her critics said she is standing in the way of a practical solution to deal with illegal immigrants who were brought to the U.S. at a young age.

And while some have concluded that the governor’s executive order merely reiterates what’s already in state law, immigration lawyers said the order has concrete implications.

At the onset, it more forcefully closes the door on one class of individuals — the “Dreamers” — from obtaining driver’s licenses. The problem, said immigration lawyer Elizabeth Chatham, is the governor is confusing “legal status” with lawful presence.

No one is arguing that the deferred action policy grants “legal status.”

But it gives individuals “lawful presence,” and in Arizona, a person merely has to prove “lawful presence” and one’s identity to get a driver’s license, the lawyer said.

On its website, the Motor Vehicle Division says an applicant needs at least two documents to get a driver license. Those documents include a federal work authorization.

Chatham and other immigration lawyers said the work permit, along with a proof of identification such as a passport or school ID, have satisfied the requirements.

They also said the deferred action program allows individuals to apply for the work permit, and for the purposes of state law, a work permit is proof of someone’s lawful presence.

Individuals who have been granted deferred action in the past have obtained a driver’s license—something that Brewer’s office doesn’t contest.

Brewer’s executive order potentially eliminates that eligibility for all individuals who have been granted deferred action, the lawyers said, adding the order is vulnerable to Equal Protection challenges.

“The state statute says clearly you have to prove lawful presence and now she has a different interpretation of what that means,” Chatham said. “I think that this is absolutely ripe for litigation.”

David Asser, an immigration lawyer in Phoenix, echoed the assessment and said Brewer’s executive order is “mistaken.”

Gerald Burns, another immigration attorney, said either the Governor’s Office doesn’t know details of deferred action or Brewer is singling out the “Dreamers.”

“Then it just becomes a political sideshow that becomes very expensive for the taxpayer,” he said, referring to the costs of potential litigation.

Attacking and defending

What’s clear is that Obama’s immigration policy and the governor’s response to it have become the focal point of another political football, with both sides lurching attacks and defending their positions.

In a media briefing at the state Capitol today, Sen. David Schapira, the minority leader, said the governor’s executive order contravenes state law.

Schapira insisted the statute that governs the issuance of a driver’s license allows those who can show a federal work permit to get one. The Democrat’s argument hinges on a statutory provision that says the Arizona Department of Transportation must not issue a driver’s license if a person does not submit “proof satisfactory to the department that the applicant’s presence in the United States is authorized under federal law.”

For Schapira, a federal work permit provides that proof.

“They are lawfully present,” Schapira said, referring to those who have obtained a work permit.

“If state law says one thing, the governor cannot put out an executive order that says something completely different,” he said, adding he also believes the executive order is directing state employees to contradict state law.

Other critics accused the governor of overstepping her bounds.

Randy Parraz, an activist who helped to oust anti-illegal immigration firebrand Russell Pearce, said Brewer is “thinking she’s above federal law.”

Parraz charged the governor of acting as if she’s “Queen of the United Counties of Arizona, a new country, (where) she can dictate laws and put out an executive order’’ that affects federal legislation.

But others said her executive order does nothing more than reiterate state laws. That is, the order is redundant since state laws would prevent illegal immigrants from receiving public benefits with — or without — it.

“Unfortunately, the governor wants to take the low road and be able to put out an executive order that means nothing,” said Sen. Steve Gallardo, a Democrat from Phoenix.

The Democratic Party echoed the sentiment, calling the executive order “nothing more than an empty gesture” that is meant to score political points with “Tea Party extremists.”

Matthew Benson, the governor’s spokesman, blamed the Obama administration for creating a problem for young illegal immigrants in states like Arizona, where they’re not eligible to get a driver’s license.

“This is not a problem of the governor’s making. This was created by President Obama when he decided that he was going to start picking and choosing which parts of the law he wanted to enforce and which parts he wanted to ignore,” Benson said, adding the governor’s executive order seeks to clarify that confusion.

The gubernatorial spokesman also rejected the charge that she’s standing in the way of a practical solution.

If Democratic lawmakers believe individuals who have no lawful status should get a driver’s license, they should propose a bill at the Legislature to do it, he said. The governor would welcome that debate, he added.

As for threats of a lawsuit, Benson cited the U.S. Department of Homeland Security, which said the policy does not confer “lawful status” on individuals.

Benson said the federal agency clearly doesn’t say a person who is granted deferred action is lawfully in the U.S. That, he surmised, is typical of the “utter confusion” that the Obama administration has created.

The governor’s office insisted that Brewer did not single out the “Dreamers,” the young illegal immigrants who are hoping that Congress would pass the Dream Act, which seeks to provide relief to undocumented students.
She took an oath to uphold the Constitution and enforce Arizona laws, and that is what she has done in the executive order, Benson said.

Taking a swipe at Schapira, the spokesman added: “I’m just still struck by the hypocrisy of a legislator who is running for Congress calling a press conference to accuse us of political grandstanding. Governor Brewer’s name won’t appear on any ballot this year. The same cannot be said of Senator Schapira and President Obama.”

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