Advocates for “dreamers” are urging the nation’s high court to reject Arizona’s last-ditch bid to take away their licenses to drive.
In new legal brief filed with the U.S. Supreme Court, attorneys for various groups are asking the justices to leave undisturbed an appellate court ruling which concluded the state acted illegally in refusing to issue licenses to those accepted into the Deferred Action for Childhood Arrivals program.
The 9th Circuit Court of Appeals said DACA recipients are in this country legally. More to the point, the judges said Arizona has no right to unilaterally decide the issue of legal presence for itself.
But the lawyers for the dreamers, led by Jennifer Chang Newell of the American Civil Liberties Union, also have a political argument in their bid to convince the Supreme Court not to review the issue at the behest of state Attorney General Mark Brnovich.
“The new administration has maintained the program, and continues to grant renewals of deferred action pursuant to DACA,” the legal paper state, even though President Trump has the unilateral authority to alter or rescind the policy just as his predecessor enacted it.
And Congress has not taken any action to strip the president of the power to offer deferred action.
“Indeed, Congress had considered — and rejected — legislation that would have temporarily suspended Department of Homeland Security’s authority to grant deferred action except in narrow circumstances, demonstrating it knows how it could limit deferred action, but has chosen not to do so, ”the dreamers’” lawyers said.
“Congress also has considered bills that would bar implementation of DACA; block agency funding unless the program were rescinded; or limited the (Homeland Security) secretary’s authority to grant DACA recipients to work authorization — but enacted none of them,” the legal filings continue. “Meanwhile, Congress has enacted multiple appropriations bills that fund DHS, leaving DACA untouched.”
The 2012 policy allows those who arrived in this country illegally as children to remain if they meet certain other qualifications. They also are entitled to employment authorization documents entitling them to work here legally.
At last count, more than 27,000 Arizonans had been granted DACA status.
But just days before the Department of Homeland Security began taking applications, Jan Brewer, governor at the time, issued an executive order directing the Arizona Department of Transportation to not issue licenses to DACA recipients. She cited a 1996 state law that says licenses are available only to those whose presence in this country is “authorized by federal law.”
Brewer argued that the federal agency really had no legal authority to permit DACA recipients to remain or work. And what that meant, she said, is they were not “authorized” to be here.
That argument failed to convince federal appellate judges who, ruling for the ACLU, the Mexican American Legal Defense and Education Fund and the National Immigration Law Center, said Arizona cannot decide for itself who is legally entitled to be in the country.
The state Department of Transportation, acting under federal court order, said its most recent statistics show that more than 21,000 DACA recipients have been granted Arizona licenses — the licenses the state is hoping to take away.
Brnovich, with the Supreme Court left as his last chance for legal relief, is arguing that what Obama did is not part of any federal law or even the result of Congress directing a federal agency to adopt a rule. And inherent in that argument is the contention that Obama exceeded his authority in establishing the DACA program in the first place.
The attorneys for the dreamers, however, point out it’s not like Obama was doing something new.
“For more than four decades, federal immigration authorities have granted deferred action to otherwise removable noncitizens in a variety of circumstances,” they said. That ranges from victims of human trafficking and relatives of victims of terrorism to even foreign students affected by Hurricane Katrina.
And they noted that along with that status comes employment authorization documents to ensure that person can work while here — the very documents the state is refusing to honor for licenses for DACA recipients.
And the lawyers for the dreamers say there is no legal basis for Brnovich’s claim that Obama acted illegally.
“Indeed, no court has found DACA to be unlawful, and every legal challenge has been dismissed,” they said.
There is a ruling by the 5th Circuit Court of Appeals blocking implementation of a subsequent Obama program known as Deferred Action for Parents of Americans, essentially a bid to allow adults who are the parents of children born here to remain. But while the judges said the president’s actions may be contrary to federal law, the appellate court’s ruling was based legally on violations of the federal Administrative Procedure Act because it acted unilaterally and did not go through the normal rule-making process.
There’s one other argument the attorneys are making in urging the Supreme Court to spurn Brnovich’s request.
“Arizona is the only state in the country that denies driver’s licenses to deferred action recipients based on a theory that they lack federally authorized presence,” the legal filings read.
“Because deferred action recipients are eligible for driver’s licenses in the 49 other states, the Ninth Circuit’s ruling is of no consequences outside of Arizona,” the lawyers said. “Thus, the court of appeals decision merely brings Arizona into line with every other state.”
More significant, there is no other federal appellate court ruling to the contrary, meaning there’s no reason for the justices to step in to resolve a conflict.
The brief was the last word from lawyers arguing in the case. The court can decide within days to accept the case or wait until the next court term begins in October 2017.