Brewer loses bid to get immigrant drivers’ licenses ruling reconsidered

Thousands of Arizona “dreamers” could be driving here legally within days.

And that could quickly extend to hundreds of thousands of other people in this state illegally.

The full 9th U.S. Circuit Court of Appeals refused Monday to overturn – or even reconsider – a ruling by a three-judge panel that Arizona has illegally denied licenses to those in the federal Deferred Acton for Childhood Arrivals program. The judges gave no reason for their ruling.

Karen Tumlin, attorney for the National Immigration Law Center, said Monday’s ruling means there is no reason for U.S. District Court Judge David Campbell to hold off any longer in issuing an order directing the state Department of Transportation to issue the licenses to those otherwise qualified. Campbell had refused to act while Gov. Jan Brewer had sought review by the full appellate court.

There is one possible hitch.

Gubernatorial spokesman Andrew Wilder said her legal team is debating whether to take the unusual step of asking the Supreme Court to intercede. And Daniel Scarpinato, press aide to Doug Ducey, who becomes governor on Jan. 5, had no immediate response to what his boss will do.

But Tumlin said it is doubtful the high court would get involved, at least not at this point.

Thursday’s hearing could have implications far broader than the 25,000 Arizonans who already have qualified for DACA, the Obama administration’s 2012 decision to allow certain migrants who arrived in this country illegally as children to remain — and even to work — if they meet certain other conditions.

That includes having come to this country before age 16 and be younger than 31 on June 15, 2012.

They also had to have been continuously living in the U.S. for the prior five years, be enrolled in school or have graduated from high school, obtained an equivalency degree, or been honorably discharged from the military.

Nationwide, more than 580,000 have qualified.

With his order this past week, the president has agreed to allow perhaps another 5 million individuals not in this country legally out of an estimated 11 million here to get similar protection from deportation and similar work permits. With 300,000 in Arizona without documents, the precedent set by the 9th Circuit could mean maybe another 130,000 or more becoming eligible for licenses.

“The same analysis would apply,” said Tumlin. “Any attempt to bar those new recipients of deferred action from licenses would be equally as unconstitutional as it was as applied to DACA recipients.”

Tumlin pointed out that one of the reasons the federal court overruled Brewer’s order about DACA recipients is that the state continued to issue licenses to others given deferred status by the federal government. She said the state cannot now seek to create its own categories of who gets a license and who does not.

“That’s what the 9th Circuit has made clear as day,” she said. “There’s no difference between deferred action, whether it’s DACA or any other flavor.”

At the heart of the legal battle is Brewer’s contention that those in the DACA program — or any other policy not approved by Congress — do not meet the requirements of a 1996 Arizona law which grants licenses only to those who are “authorized” to be in this country.

She contends the decision by the Obama administration to let some people stay and work does not rise to the level of legally authorizing them to be here. So she issued an executive order directing ADOT to deny licenses to those accepted into DACA.

Campbell, who heard the initial lawsuit, sided with the governor and rejected a request for injunction.

The three judge panel, however, ruled earlier this year that the evidence so far shows that Brewer’s action is likely illegal.

Potentially more significant, the judges said the dreamers are being harmed right now by the delay. That includes making it difficult for them to get jobs or go to school, both of which were privileges extended to DACA recipients.

Even at that point, Campbell refused to issue the directive to ADOT, noting that Brewer had sought review by the full 9th Circuit.

Now, however, the full court has upheld the panel. And absent Supreme Court intervention, Campbell no longer has any legal excuse for delay.

In its ruling in July, the three-judge panel said the problem with Arizona denying licenses to DACA recipients goes beyond the state’s inconsistent policy about which deferred action recipients qualify and which do not. Judge Harry Pregerson, writing for the court, said there was evidence the policy was motivated at least in part by animosity.

“Defendants’ policy appears intended to express animus toward DACA recipients themselves, in part because of the federal government’s policy toward them,” he wrote. “Such animus, however, is not a legitimate state interest.”

Brewer has made no secret she does not like the policy — or, in fact, the way the Obama administration has handled any aspect of immigration.

There has never actually been a full-blown trial on the legality of the Arizona policy. Instead, the court fights so far have been over whether the dreamers should be allowed to drive while the case proceeds.

Pregerson said the court sided with the challengers because the policy can cause “irreparable harm” to those affected. He said inability to legally drive also makes it more difficult, if not impossible, for them to hold jobs — a specific right they get being in the DACA program.

Dulce Matuz, president of the Arizona Dream Act Coalition, said she hopes this is the end of the fight.

“Gov. Brewer has wasted countless taxpayer dollars defending a misguided and harmful policy that has been rejected time and time again by the court,” she said.

Marielena Hincapie, executive director of the National Immigration Law Center, said the ruling “should serve as a wakeup call for the new governor” to allow the dreamers to get licenses “so they can drive to school and work and participate fully in their communities.”