The question of whether “dreamers” can keep their Arizona driver’s licenses could depend on who a federal judge believes first came up with the idea to reject them.
Douglas Northup said the 2012 decision to deny licenses to those in the Obama administration program came from John Halikowski, director of the Arizona Department of Transportation.
Northup told Judge David Campbell on Wednesday that it was only after ADOT concluded these people did not meet the requirements of Arizona law that Jan Brewer, governor at the time, issued her executive order declaring licenses off limits for those in the Deferred Action for Childhood Arrivals program. The attorney said Halikowski also was concerned that providing licenses to those who are not here legally could open the door to their getting public benefits and leave the state liable.
But Araceli Martinez-Olguin of the American Civil Liberties Union, said the “plain text” of Brewer’s order made it clear she made the decision and blocked ADOT from issuing licenses.
The distinction could prove crucial because it goes to the question of whether there was a “rational basis” for the state policy.
In agreeing to a preliminary injunction blocking that policy, Judge Harry Pregerson of the 9th U.S. Circuit Court of Appeals rejected arguments by the state that DACA recipients do not meet the requirements of a 1996 Arizona law which say licenses are available only to those whose presence in the country is “authorized by federal law.”
Pregerson pointed out that Arizona has continued to issue licenses to others who are not in this country legally but have been allowed to stay while pursuing certain appeals. And he said people in those groups are issued “employment authorization documents,” the same documents issued to DACA recipients.
What that suggests, Pregerson wrote, is that the policy “appears intended to express animus toward DACA recipients themselves.” And that, he said “is not a legitimate state interest.”
Now attorneys for DACA recipients want Campbell to make the injunction permanent.
During Wednesday’s hearing, Northup told the judge that ADOT concluded on its own – without direction from Brewer – that DACA recipients are not entitled to licenses. And he said there was no evidence in the record that Brewer, who was independently looking at the question, had any animosity toward DACA recipients.
“At best, the governor had a problem with what President Obama did” in deciding that people who came to this country illegally as children can remain and work without fear of deportation, Northup said. And he said Halikowski has said in a sworn statement that it was his agency that decided there is a “rational basis” for treating DACA recipients different than others who were – and are – getting Arizona licenses.
Martinez-Olguin said that is contradicted by other evidence, including Brewer’s Aug. 15, 2012 order itself.
In it, Brewer says that by virtue of her authority she concludes that the issuance of employment authorization documents to those not here legally “does not confer upon them any lawful or authorized status,” meaning they cannot be licensed.
Northup said if the judge has any question about how the policy came about happened he should schedule a full-blown trial and reject the request by the DACA recipients for an immediate and permanent injunction.
But Martinez-Olguin said that’s not necessary.
She said the record clearly shows – and the 9th Circuit already concluded – there is no basis to argue that DACA recipients are any different than those who the state is licensing. One of those categories includes those who have been ordered removed from the country but are trying to have that cancelled.
Sean Hood, another attorney for the state, acknowledged they do get Arizona licenses. But he said that’s because their appeal process is spelled out in federal immigration law.
“They’re only here as long as it takes to resolve that issue,” Hood said.
He acknowledged that DACA recipients also get to stay. But Hood said the difference is there is “no basis” in immigration law for DACA.
Martinez-Olguin countered that federal law gives the Department of Homeland Security the power to exercise “prosecutorial discretion” in determining who to try to deport and who not to pursue.