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Federal appeals court to decide if DACA preempts Arizona on Dreamers’ licenses

AZ Drivers license1The question of whether a federal court allows the state to deny licenses to dreamers could depend on how hard the judges believe it is to get around Arizona without a car.

Attorneys for those challenging the 2012 Arizona policy contend that the state’s refusal to license those in the Obama administration’s Deferred Action for Childhood Arrivals program runs afoul of federal laws governing immigration.

They acknowledge a 1996 Arizona law says the state issues licenses only to those “authorized” to be present in this country. But the challengers say it is the federal government and not Arizona who decides who is authorized.

More than 12,000 DACA recipients already are driving after a lower court judge rejected that argument.

Now the case is before the 9th U.S. Circuit Court of Appeals. But what that court decides could turn on a narrower question: Is the Arizona policy preempted because it undermines a key provision of DACA which allows those who qualify not only to remain but specifically to work legally in this country.

And in new filings, the lawyers for challengers cite the lack of mass transit to prove that.

But Dominic Draye, an assistant attorney general defending the law, said even if there is a link between being able to drive and get a job, a point he is not conceding, all that is legally irrelevant. He said the right to work does not mean the right to drive to get there – or for that matter the even the right to a job that requires a license.

And if the court doesn’t buy that argument, Draye has an ultimate backup. He contends the Obama administration had no right to approve DACA in the first place, making the whole debate about driving moot.

DACA allows those who arrived as children and meet other conditions to remain without fear of deportation. DACA recipients also are issued Employment Authorization Documents which allow them to work.

The Department of Transportation, acting at the behest of Jan Brewer when she was governor, balked at issuing licenses, citing a 1996 law requires proof that someone is “authorized” to be in this country. Attorneys for the state contend DACA is not authorization but simply a policy not to deport those who are not legally present.

But the appellate judges signaled they may decide the issue based on the narrower question of whether state law – as interpreted by ADOT – is preempted by federal law. And that could depend on whether they believe denying licenses to DACA recipients frustrates the federal program.

Challengers to the Arizona law say nearly 90 percent of Arizonans drive to work, with most of the more than 90 communities in the state have no public transit at all. And even in the state’s two urban counties, only a third live within 10 miles of a bus stop.

They also say carpooling is “ineffectual and unreliable” and that DACA recipients cannot regularly rely on getting rides to and from work from family or friends.

They said one of the plaintiffs in the lawsuit was studying for a job as an emergency medical technician but would be required to drive. They also said several were denied jobs that require licenses, and another, is a self-employed graphic designer, lost potential clients as a result of her inability to drive legally.

Draye, however, said none of that matters.

“Nothing in the decision to confer EADs implies a right to drive a personal automobile or to pursue a job that requires driving over a job that does not,” he said. Draye said the Arizona policy on who can drive does not conflict with the federal policy of allowing DACA recipients to work.

But Jorge Castillo of the Mexican American Legal Defense and Educational Fund said the issues are linked.

“The standard isn’t ‘can they get a job or not get a job,’ “ he said. “It’s ‘is their ability to get a job – and the authorization the federal government given them to that end – frustrated,’ “

And Jennifer Chang Newell of the American Civil Liberties Union, said it doesn’t matter that DACA recipients may be able to find work somewhere.

“It’s an employment authorization,” she said.

“It’s intended to allow you to work anywhere you’re qualified for employment,” Newell continued. “To limit people to jobs they’re only able to get to through public transportation … would still place restrictions on the individual’s ability to exercise their employment authorization.”

That question of the right to work has longer-term implications. The National Immigration Law Center says DACA recipients who work for at least 10 years and pay their taxes actually could qualify for both Social Security and Medicare.

The Obama administration itself is expected to weigh in on the question of whether it believes the Arizona policy frustrates DACA later this month.

Draye has an ultimate fallback argument if the appellate court does not accept the state’s argument that there is no right of DACA recipients to drive so they can get work. He contends the decision by the administration to create DACA in the first place is illegal, making the EADs meaningless.

He acknowledged that the Department of Homeland Security can defer deportation actions against individuals and even issue them EADs. But Draye said that’s not what’s happening here.

“By suspending enforcement of the Immigration and Naturalization Act for an entire class of unauthorized aliens and, moreover, conferring on them the benefit of employment authorization, the executive branch has acted contrary to the will of Congress in an area belonging to Congress,” he argued.

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